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(^■)~i^t.^ w <, ^»- 



REPORl 



Of T'..r. 



i >[<TVFIFTH ANNl'AL MLLTING 



OF THfc 



nerican Bar Association 



HELU AT 



v\N. FR.WCISCO, CALIFORNIA 



MKil Sr o. TO and ii, 10^2 



b/*rT;.MuJ^H . 
THE L'»K:) L'.ALTiyii>KE Vl^i.S^ 



REPORT 



OF THE 



FORTY-FIFTH ANNUAL MEETING 



OF THE 



American Bar Association 



HELD AT 



SAN, FRANCISCO, CALIFORNIA 



AUGUST 9, lo and ii, 1922 



f . • • • ' 



BALTIMORE: 
THE LORD BALTIMORE PRESS 

1922 



29680 



2 






• •• 






. .i : 






• '•  • , • • 






CONTENTS. 

PAQB 

Portrait of President Frontispiece 

Canons of Ethics 7 

Proceedings of American Bar Association : 

Ist day, Morning Session 10 

Afternoon Session 28 

Evening Session 30 

2d day, Morning Session 32 

Afternoon Session 35 

Evening Session : 72 

3d day, Morning Session 77 

Secretary's Report 103 

Treasurer's Report 106 

Report of the Executive Committee 110 

Members and Delegates Registered at Meeting 114 

Annual Dinner 128 

List of Presidents 129 

Secretaries 130 

Treasurers 130 

Executive Committee 131 

Places of Meeting and Attendance 133 

Constitution 134 

By-Laws 140 

Officers of Association, Sections, etc 146 

General Council 148 

Vice-Presidents and Members of Local Councils 149 

Standing Committees 156 

Special Committees 159 

Address of President Severance 163 

Address of Lucien Shaw .' 189 

Addreffl of F. Dumont Smith 208 

Address of Lord Shaw 219 

Address of M. Henry Aubepin 244 

Address of William Howard Taf t 250 

Address of Calvin Coolidge 270 

Address of Nicholas Murray Butler 278 

Committee Reports: 

Professional Ethics and Grievances 285 

Commerce, Trade and Commercial Law 288 

International Law 323 

Lisurance Law 353 

Jurisprudence and Law Reform 356 

Admiralty and Maritime Law 367 

Uniform Judicial Procedure 370 

Membership 389 

Classification and Restatement of the Law 391 

Publicity 394 

Memorials 395 

Legal Aid Work 402 

Law of Aeronautics 413 

American Citizenship 416 

(3) 



4 CONTENTS. 

Committee Reports — Continued page 

Law Enforcement 424 

Internal Revenue Law and Its Means of Collection 433 

Finance 436 

List of State Bar Associations 437 

Some of the Larger Local Bar Associations 439 

Memorandum of Subjects Referred to Committees 441 

List of Addresses and Papers Read 442 

Proceedings of the Comparative Law Bureau 451 

Proceedings of the Judicial Section 457 

Address of Curtis D. Wilbur 450 

Address of N. P. Conrey 472 

List of Judges Registered 480 

Conference of Bar Association Delegates: 

Proceedings of the Special Conference on Legal Education.... 482 

Proceedings of Seventh Annual Conference 502 

RepresentativeB of Bar Associations Registered 600 

Proceedings of the Section of Patent, Trade-Mark and Copyright 

Law 605 

Proceedings of the Section of Criminal Law 607 

Address of A. M. Kidd 614 

Address of John A- Larsen 619 

Address of Herman M. Adler 629 

Proceedings of the Section of Public Utility Law 634 

Address of Nathaniel T. Guernsey 637 

Address of Edwin 0. Edgerton 652 

Address of Hugh Gordon 661 

Address of Franklin T. Griffith 675 

Proceedings of Section of Legal Education and Admissions to the 

Bar 689 

Commissioners on Uniform State Laws: 

Origin, Nature and Scope 691 

Officers of the Conference 695 

Standing and Special Committees 695 

List of Commissioners 700 

Proceedings of Conference 705 

Address of President — Henry Stockbridge 717 

Honorary Members 722 

Alphabetical List of Members 723 

State List of Members by Cities, Towns and Counties 882 

Recapitidation 1014 

Notice as to Reports 1015 

Index 1017 



AMEBICAN BAR ASSOCIATION. 

(Organized at Saratoga Springs, New York, Augtut SI, 1878,) 

" Its object shall be to advance the science of jurisprudence, 
promote the administration of justice and unifonnity of legisla- 
tion and of judicial decision throughout the nation, uphold the 
honor of the profession of the law, and encourage cordial inter- 
course among the members of the American Bar/' (Constitu- 
tion, Article I.) 



(6) 



"There is certainly, without any exception, no profession in which 
so many temptations beset the path to swerve from the line of strict 
integrity, in which so many delicate and difficult questions of duty 
are continually arising. Tliere are pitfalls and mantraps at every 
step, and the mere youth, at the very outset of his career, needs often 
the prudence and self-denial as well as the moral courage, which 
belong commonly to riper years. High moral principle is the only 
safe guide, the only torch to light his way amidst darkness and 
obstruction."— GEORGE SHARSWOOD. 

"Craft is the vice, not the spirit, of the profession. Trick is pro- 
fessional prostitution. Falsehood, is professional apostasy. The 
strength of a lawyer is in thorough knowledge of legal truth, in 
thorough devotion to legal right. Truth and integrity can do more in 
the profession than the subtlest and wiliest devices. The power of 
integrity is the rule; the power of fraud is the exception. Emulation 
and zeal lead lawyers astray; but the general law of the profession is 
duty, not success. In it, as elsewhere, in human life, the judgment of 
success is but the verdict of little minds. Professional duty, faith- 
fully and well performed, is the lawyer's glory. This is equally true 
of the Bench and of the Bar."— EDWARD G. RYAN. 

"Discourage litigation. Persuade your neighbors to compromise 
whenever you can. Point out to them how the nominal winner is 
often a real loser — in fees, expenses and waste of time. As a peace- 
maker, the lawyer has a superior opportunity of being a good man. 
Never stir up litigation. A worse man can scarcely be found than 
one who does this. Who can be more nearly a fiend than he who 
habitually overhauls the register of deeds in search of defects in titles 
whereupon to stir up strife and put money in his pocket? A moral 
tone ought to be enforced in the profession which would drive such 
men out of it."— ABRAHAM LINCOLN. 



(6) 



CANONS OF ETHICS. 

I ' •* - 

Pbsa3i:bl& 

*» w 

O * 

In America^ where the stability of courts aad of all depart- 
ments of gOYernment rests upon the approval of the people, it 
is peculiarly essential that the system for establishing an$ dis- 
pensing justice be developed to a high point of efficiency and 
so maintained that the public shall have absolute confidence i4 
the integrity and impartiality of its administration* The future 
of the republic, to a great extent, depends upon our maintenance 
of justice pure aad unsullied. It cannot be so maintained unless 
the conduct and the motives of the members of our profession 
are such bs to merit the approval of all just men. 

II. 

Thb Canon op Ethics.* 

Ko code or set of rules can be framed which will particularize 
all the duties of the lawyer in the varying phases of litigation or 
in all the relations of professional life. The following canons 
of ethics are adopted by the Americaa Bar Association as a 
general guide, yet the- enumeration of particular duties should 
not be construed as a denial of the existence of others equally 
imperative, though not specifically mentioned : 

1. The Duty of the Lawyer to the Courts. — It is the duty of the 
lawyer to maintain toward the Courts a respectful attitude, not for 
the sake of the temporary incumbent of the judicial office, but for 
the maintenance of its supreme importance. Judges, not being wholly 
free to defend themselves, are peculiarly entitled. to receive the support 
of the Bar against imjust criticism and clamor. Whenever there is 
proper ground for serious complaint of a judicial officer, it is the right 
and duty of the lawyer to submit his grievances to the proper authori- 
ties. In such cases, but not otherwise, such charges should be encour- 
aged and the person making them should be protected. 

2. The Selection of Judges. — ^It is the duty of the Bar to endeavor 
to prevent political considerations from outweighing judicial fitness 
in the selection of Judges. It should protest earnestly and actively 



* For index and Synopsis of Canons, see p. 17. 

(7) 



8 AHEBIOAK BAB ASSOCIATION. 

• . • 

against the appointment or* election of those who are unsuitable for 
the Bench ; and it should .strive to have elevated thereto only those 
willing to forego otb^. ^ffi^lojrments, whether of a business, political 
or other character^* w^ch may embarrass their free and fair considera- 
tion of questioi^ -before them for decision. The aspiration of lawyers 
for judicial p<3^ik)n should be governed by an impartial estimate of 
their ability to. add honor to the office and not by a desire for the dis- 
tinction the position may bring to themselves. 

3. iytteaipts to Exert Personal Influenee on the Court.— -Marked 

attention and unusual hospitality on the part of a lawyer to a Judge, 

. .uncalled for by the personal relations of the parties, subjected both the 

Jddge and the lawyer to misconstructions of motive and should be 

\ Avoided. A lawyer should not communicate or argue privately with 

' the Judge as to the merits of a pending cause, and he deserves rebuke 

and denunciation for any device or attempt to gain from a Judge special 

personal consideration or favor. A self-respecting independence in 

the discharge of professional duty, without denial or diminution of 

the courtesy and respect due the Judge's station, is the only proper 

foundation for cordial personal and official relations between Bench and 

Bar. 

4. When Counsel for an Indigent Prisoner. — ^A lawyer assigned 
as counsel for an indigent prisoner ought not to ask to be excused 
for any trivial reason, and should always exert his best efforts in his 
behalf. 

5. The Defense or Prosecution of Those Aecused of Crime.— It 
is the right of the lawyer to undertake the defense of a person accused 
of crime, regardless of his personal opinion as to the guilt of the 
accused; otherwise innocent persons, victims only of suspicious cir- 
cimistances, might be denied proper defense. Having undertaken such 
defense, the lawyer is bound by all fair and honorable means, to pre- 
sent every defense that the law of the land permits, to the end that no 
person may be deprived of life or liberty, but by due process of law. 

The primary duty of a lawyer engaged in public prosecution is not 
to convict, but to see that justice is done. The suppression of facts or 
the secreting of witnesses capable of establishing the innocence of the 
accused is highly reprehensible. 

6. Adverse Influences and Conflicting Interests. — It is the duty of 
a lawyer at the time of retainer to disclose to the client all the circum- 
stances of his relations to the parties, and any interest in or connection 
with the controversy, which might influence the client in the selection 
of counsel. 

It is unprofessional to 'represent conflicting interests, except by ex- 
press consent of all concerned given after a full disclosure of the facts. 
Within the meaning of this canon, a lawyer represents conflicting inter- 
ests when, in behalf of one client, it is his duty to contend for that which 
duty to another client requires him to oppose. 



0AN0N8 OV BTHIOS. 9 

The obligation to represent the dient with undivided fidelity and 
not to divulge his secrets or confidences forbids also the subsequent 
acceptance of retainers or employment from others in matters ad* 
versely affecting any interests of the client with respect to which 
confidence has been reported. 

7. Professional Colleagves and Conflicts of Opinion.— -A client's 
proffer of assistance of additional coimsel should not be regarded 
as evidence of want of confidence, but the matter should be left to 
the determination of the client. A lawyer should decline associa- 
tion as colleague if it is objectionable to the original counsel, but 
if the lawyer first retained is relieved, another may come into the 
case. 

When lawyers jointly associated in a cause cannot agree as to any 
matter vital to the interest of the client, the conflict of opinion should 
be frankly stated to him for his final determination. His decision 
should be accepted unless the nature of the difference makes it im- 
practicable for the lawyer whose judgment has been overruled to co- 
operate effectively. In this event it is his duty to ask the client to 
relieve him. 

Efforts, direct or indirect, in any way to encroach upon the business 
of another lawyer, are unworthy of those who should be brethren at 
the Bar; but nevertheless, it is the right of any lawyer, without fear 
or favor, to give proper advice to those seeking relief against unfaithful 
or neglectful counsel, generally after communication with the lawyer 
of whom the complaint is made. 

8. Advising upon the Merits of a Client's Cause. — A lawyer should 
endeavor to obtain full knowledge of his client's cause before advising 
thereon, and he is bound to give a candid opinion of the merits and 
probable result of pending or contemplated litigation. The miscarri- 
ages to which justice is subject, by reason of surprises and disappoint- 
ments in evidence and witnesses, and through mistakes of juries and 
errors of Courts, even though only occasional, admonish lawyers to 
beware of bold and confident assurances to clients, especially where the 
employment may depend upon such assurance. Whenever the contro- 
versy will admit of fair adjustment, the client should be advised to 
avoid or to end the litigation. 

9. Negotiations with Opposite Party.— A lawyer should not in any 
way communicate upon the subject of controversy with a party repre- 
sented by counsel; much less should he undertake to negotiate or 
compromise the matter with him, but should deal only with his counsel. 
It is incumbent upon the lawyer most particularly to avoid everything 
that may tend to mislead a party not represented by coimsel, and he 
should not undertake to advise him as to the law. 

10. Acquiring Interest in Litigation. — ^The lawyer should not pur- 
chase any interest in the subject matter of the litigation which he is 
conducting. 



10 AMEBIOAN BAB ASSOCIATION. 

11. Dealing with Tmst Property. — Money of the client or other 
trust property coming into the posseBsion of the lawyer should be re- 
ported promptly, and except with the client's knowledge and consent 
should not be commingled with his private property or be used by him. 

12. Fixing the Amount of the Fee. — ^In fixing fees, lawyers should 
avoid charges which overestimate their advice and services, as well 
as those which undervalue them. A client's ability to pay cannot justify 
a charge in excess of the value of the service, though his poverty may 
require a less charge, or even none at all. The reasonable requests of 
brother lawyers, and of their widows and orphans without ample means, 
should receive special and kindly consideration. 

In determining the amoimt of the fee, it is proper to consider: (1) 
the time and labor required, the novelty and difficulty of the questions 
involved and the skill requisite properly to conduct the cause; (2) 
whether the acceptance of emplo3rment in the particular case will pre- 
clude the lawyer's appearance for others in cases likely to arise out of 
the transaction, and in which there is a reasonable expectation that 
otherwise he would be employed, or will involve the loss of other busi- 
ness while employed in the particular case or antagonisms with other 
clients; (3) the customary charges of the Bar for similar services; (4) 
the amount involved in the controversy and the benefits resulting to 
the client from the services; (6) the contingency or the certainty of 
the compensation; and (6) the character of the emplosrment, whether 
casual or for an established and constant client. No one of these con- 
siderations in itself is controlling. They are mere guides in ascertaining 
the real value of the service. 

In fixing fees it should never be forgotten that the profession is a 
branch of the Etdmimstration of justice and not a mere money-getting 
trade. 

13. Contingent Fees. — Contingent fees, where sanctioned by law, 
should be under the supervision of the Court, in order that clients may 
be protected from unjust charges. 

14. Suing a Client for a Fee. — Controversies with clients concern- 
ing compensation are to be avoided by the lawyer so far as shall be 
compatible with his self-respect and with his right to receive reasonable 
recompense for his services ; and lawsuits with clients should be resorted 
to only to prevent injustice, imposition or fraud. 

15. How Far a Lawyer May Go in Supporting a Client's Cause. — 
Nothing operates more certainly to create or to foster popular preju- 
dice against lawyers as a class, and to deprive the profession of that 
full measure of public esteem and confidence which belongs to the 
proper discharge of its duties, than does the false claim, often set up by 
the unscrupulous in defense of questionable transactions, that it is the 
duty of the lawyer to do whatever may enable him to succeed in winning 
his client's cause. 

It is improper for a lawyer to assert in argument his presonal belief 
in his client's innocence or in the justice of his cause* 



0ANON8 07 BTHIOS. 11 



y 



The lawyer owes " entire devotion to the interest of the client, warm 
Beal in the maintenance and defense of his rights and the exertion of 
his utmost learning and ability/' to the end that nothing be taken or be 
withheld from him, save by the rules of law, legally applied. No fear 
of judicial disfavor or public unpopulari^ should restrain him from 
the full discharge of his duty. In the judicial forum ihe client is en- 
titled to the benefit of any and every remedy and defense that is 
authorized by the law of the land, and he may expect his lawyer to 
assert every such remedy or defense. But it is steadfastly to be borne 
in mind that the great trust of the lawyer is to be performed within 
and not without the bounds of the law. The office of attorney does not 
permit, much less does it demand of him for any client, violation of law 
or any manner of fraud or chicane. He must obey his own conscience 
and not that of his client. 

16. R«str«iiiiiig Cli«iit« from Improprieties.-— A lawyer should use 
his best efforts to restrain and to prevent his clients from doing those 
things which the lawyer himself ought not to do, particular^ with 
reference to their conduct towards Courts, judicial officers, jurors, wit- 
nesses and suitors. If a client persists in such wrong-doing the lawyer 
should terminate' their relation. 

17. Ill-Feeling and Personalities Between Advocates.— -Clients, 
not lawyers, are the litigants. Whatever may be the ill-feeling existing 
between clients, it should not be allowed to influence coimsel in their 
conduct and demeanor toward each other or toward suitors in the case. 
All personalities between counsel should be scrupulously avoided. In 
the trial of a cause it is indecent to allude to the personal history or 
the personal peculiarities and idio89rncrasi£S of counsel on the other 
side. Personal colloquies between counsel which cause delay and pro- 
mote unseemly wrangling should also be carefully avoided. 

18. Treatment of Witnesses and Litigants. — ^A lawyer should al- 
ways treat adverse witnesses and suitors with fairness and due con- 
sideration, and he should never minister to the malevolence or preju- 
dices of a client in the trial or conduct of a cause. The client cannot 
be made the keeper of the lawyer's conscience in professional matters. 
He has no right to demand that hb counsel shall abuse the opposite 
party or indulge in offensive personalities. Improper speech is not 
excusable on the groimd that it is what the client would say if speaking 
in his own behalf. 

19. Appearance of Lawyer as Witness for His Client. — ^When a 
lawyer is witness for his client, except as to merely formal matters, such 
as the attestation or custody of an instrument and the like, he should 
leave the trial of the case to other counsel. Except when essential to 
the ends of justice, a lawyer should avoid testifying in Court in behalf 
of his client. 

20. Newspaper Discussion of Pending Litigation.— Newspaper 
publications by a lawyer as to pending or fiQticipated litigation ma^ 



IZ AMEBICAN BAB ASSOCIATION. 

interfere with a fair trial in the Courts and otherwise prejudice the due 
administration of justice Generally th^ are to be condemned. If the 
extreme circumstances of a particular case justify a statement to the 
public, it is improfessional to make it anon3rmously. An ex parte 
reference to the facts should not go beyond quotation from the records 
and papers on file in the Court; but even in extreme cases it is better 
to avoid any ex parte statement. 

21. Punetuality and Expedition. — It is the duty of the lawyer not 
only to his client, but also to the courts and to the public, to be punctual 
in attendance, and to be concise and direct in the trial and disposition 
of causes. 

22. Candor and Fairness. — ^The conduct of the lawyer before the 
Court and with other lawyers should be characterized by candor and 
faimeas. 

It is not candid or fair for the lawyer knowingly to misquote the 
contents of a paper, the testimony of a witness, the language or the 
argument of opposing counsel, or the language of a decision or a text- 
book ; or with knowledge of its invalidity, to cite as authority a decision 
that has been overruled, or a statute that has been repealed ; or in argu- 
ment to assert as a fact that which has not been proved, or in those 
jurisdictions where a side has the opening and closing arguments to 
mislead his opponent by conceaHng or withholding positions in his 
opening argument upon which his side then intends to rely. 

It is unprofessional and dishonorable to deal other than candidly with 
the facts in taking the statements of witnesses, in drawing affidavits 
and other documents, and in the presentation of causes. 

A lawyer should not offer evidence, whith he knows the Court should 
reject, in order to get the same before the jury by argument for its 
admissibility, nor should he address to the Judge arguments upon any 
point not properly calling for determination by him. Neither should 
he introduce into an argiimctit, addressed to the Court, remarks or 
statements intended to influence the jury or bystanders. 

These and all kindred practices are unprofessional and unworthy of an 
officer of the law charged, as is the lawyer, ^ith the duty of aiding in the 
administration of justice. 

23. Attitude Toward Jury. — All attempts to curry favor with juries 
by fawning, flattery or pretended solicitude for their personal comfort 
are unprofessional. Suggestions of counsel, looking to the comfort or 
convenience of jurors, and propositions to dispense with argument, 
should be made to the Court out of the jury's hearing. A lawyer must 
never converse privately with jurors about the case; and both before 
and during the trial he should avoid communicating with them, even as 
to matters foreign to the cause. 

24. Right of Lawyer to Control the Incidents of the Trial. — ^As to 
incidental matters pending the trial, not affeeting the merits of the 
cause, or working substantial prejudice to tbo rights of the client, 



0ANON8 07 BTHIOS. 13 

sach. as forcing the opposite lawyer to trial when he is under affliotion 
or bereavement; forcing the trial on a particular day to the injury of 
the opposite lawyer when no harm will result from a trial at a different 
time; agreeing to an extension of time for signing a bill of exceptions, 
erosB interrogatories and the like, the lawyer must be allowed to judge. 
In such matters no client has a right to demand that his counsel shall be 
illiberal, or that he do anything therein repugnant to his own sense of 
honor and property. 

25. Taking Technical Advantage of Opposite Coansoli Agree* 
ments with Him. — ^A lawyer should not ignore known customs or 
practice of the Bar or of a particular Court, even when the law permits, 
without giving timely notice of the opposing counsel. As far as pos- 
sible, important agreanents, affecting the rights of dients, ^ould be 
reduced to writing; but it is dishonorable to avoid performance of an 
agreement fairly made because it is not reduced to writing, as required 
by rules of Court. 

26. Professional Advocacy Other Than Before Courts. — ^A lawyer 
openly, and in his true character may render professional services 
before legislative or other bodies, regarding proposed legislation and 
in advocacy of claims before departments of government, upon the 
same principles of ethics which justify his appearance before the Courts; 
but it is improfessional for a lawyer so engaged to conceal his attorney- 
ship, or to employ secret personal soficitations, or to use means other 
than those addressed to the reason and understanding to influence action. 

27. Advertising, Direct or Indirect.— The most worthy and effec- 
tive advertisement possible, ev&i for a young lawyer, and especially with 

*his brother lawyers, is the establishment of a well-merited reputation 
for professional capacity and fidelity to trust. This cannot be forced, 
but must be the outcome of character and conduct. The publication 
or circulation of ordinary simple business cards, being a mi^ttrr of 
personal taste or local custom, and sometimes of coiArenience, is not 
per 86 improper. But solicitation of business by circulars or advertise- 
ments, or by personal communications or interviews, not warranted by 
personal relations, is improfesaional. It is equally unprofessional to 
procure business by indirection through touters of any kind, whether 
aUied real estate firms or trust companies advertising to secure the 
drawing of deeds or wills or offering retainers in exchange for executor- 
ships or trusteeships to be influenced by the lawyer. Indirect advertise- 
ment for business by furnishing or inspiring newspaper comments 
concerning causes in which the lawyer has been or is engaged, or con- 
cerning the manner of their conduct, the magnitude of the interests 
involved, the importance of the lawyer's positions, and all other like 
self-laudation, defy the traditions and lower the tone of oiur high calling, 
and are intolerable. 



14 AMEBIOAK BAB AS800IATI0N. 

28. Stirring vp LitigatioBt Directly or Tkrougk Ageiits.^It IB 
unprof esaional for a lawyer to volunteer advice to bring a lawsuit, except 
in rare cases where ties of blood, relationship or trust make it his duty 
to do so. Stirring up strife and litigation is not only unprofessional, but 
it is indictable at common law. It is disreputable to hunt up defects in 
titles or other causes of action and inform thereof in order to be em- 
ployed to bring suit, or to breed litigation by seeking out those with 
claims for personal injuries or those having any other grounds of action 
in order to secure them as clients, or to employ agents or runners for 
like purposes, or to pay or reward directly or indirectly, those who bring 
or influence the bringing of such cases to his office, or to remunerate 
policemen, court or prison officials, physicians, hospital attacJUs or 
others who may succeed, under the guise of giving disinterested friendly 
advice, in influencing the criminal, the sick and the injured, the igno- 
rant or others, to seek his professional services. A duty to the public 
and to the profession devolves upon every member of the Bar, having 
knowledge of such practices upon the part of any practitioner, im- 
mediately to inform thereof to the end that the offender may be 
disbarred. 

29. Upholding the Honor of the Profession. — ^Lawyers should ex- 
pose without fear or favor before the proper tribunals corrupt or di»- 
honest conduct in the profession, and should accept without hesitation 
employment against a member of the Bar who has wronged his client. 
The counsel upon the trial of a cause in which perjiury has been com- 
mitted owe it to the profession and to the public to bring the matter 
to the knowledge of the prosecuting authorities. The lawyer should 
aid in guarding the Bar against the admission to the profession of candi- 
dates unfit or unqualified because deficient in either moral character 
or education. He should strive at all times to uphold the honor and 
to maintain the dignity of the profession and to improve not only the 
law but the administration of justice. 

30. Justifiable and Unjustifiable Litigations. — ^The lawyer must 
dechne to conduct a civil cause or to make a defense when convinced 
that it is intended merely to harass or to injure the opposite party or 
to work oppression or wrong. But otherwise it is his right, and, having 
accepted retainer, it becomes his duty to insist upon the judgment of 
the Court as to the legal merits of his client's claim. His appearance in 
Court should be deemed equivalent to an assertion on his honor that in 
his opinion his client's case is one proper for judicial determination. 

31. Responsibility for Litigation. — ^No lawyer is obliged to act 
dther as adviser or advocate for every person who may wish to become 
his client. He has the right to decline employment. Every lawyer 
upon his own responsibility must decide what business he will accept 
as counsel, what causes he will bring into Court for plaintiffs, what 



GAK0N8 09 STHIC6. 16 

eajses he will contest in Court for defendants. The responaibility for 
advising questionable transactions, for bringing questionable suits, for 
urging questionable defenses, is the lawyer's responsibility. He cannot 
escape it by urging as an excuse that he is only following his client's 
instructions. 

32. The Law3r«r's Dat^ in Its Last Analysis. — No client, corporate 
or individual, however powerful, nor any cause, civil or political, however 
important, is entitled to receive, nor should any lawyer render any 
service or advice involving disloyalty to the law whose ministers we are, 
or disrespect of the judicial office, which we are bound to uphold, or 
corruption of any person or persons exercising a public office or private 
trust, or deception or betrayal of the public. When rendering any such 
improper service or advice, the lawyer invites and merits stem and just 
condemnation. Correspondingly, he advances the honor of his profes- 
sion and the best interests of his client when he renders service or 
gives advice tending to impress upon the client and lus undertaking 
exact compliance with the strictest principles of moral law. He must 
also observe and advise his client to observe the statute law, though 
until a statute shall have been construed and interpreted by compe- 
tent adjudication, he is free and is entitled to advise as to its validity 
and as to what he conscientiously believes to be its just meaning 
and extent. But above all a lawyer will find his highest honor in 
a deserved reputation for fidelity to private trust and to public duty, 
as an honest mah and as a patriotic and loyal citizen. 

III. 

Oath of Admission. 

The general principles which should ever control the lawyer 
in the practice of his profession are clearly set forth in the fol- 
lowing Oath of Admission to the Bar, formulated upon that in 
nse in the State of Washington, and which conforms in its main 
outlines to the " duties'' of lawyers as defined by statutory 
enactments in that and many other states of the union * — duties 

* Alabama, Cahfomia, Georgia, Idaho, Indiana, Iowa, Mirmesota, 
Mississippi, Nebraska, North Dakota, Oklahoma, Oregon, South Dakota, 
Utah, Washington and Wisconsin. The oaths administered on admis- 
sion to the Bar in all the other States require the observance of the 
highest moral principle in the practice of the profession, but the duties 
of the lawyer are not as specifically defined by law as in the States 
named. 



16 AKEBJOAK BAB ASSOCIATION. 

which they are sworn on admission to obey and for the wilful 
violation of which disbarment is provided : 

/ DO SOLEMNLY SWEAR: 

I vnU support the Constitution of the United States and the Consti- 
tution of the State of .* ; 

/ wiU tnaintam the respect due to Courts of Justice and judicial 
officers; 

I ufill not counsel or maintain any suit or proceeding which shall ap- 
pear to me to be unjust, nor any defense except such as I believe to be 
honestly debatable under the law of the land; 

I will employ for the purpose of maintaining the causes confided to 
me siLch means only as are consistent with truth and honor, and wHl 
never seek to mislead the Judge or jury by any artifice or false state- 
ment of fact or law; 

I wHl maintain the confidence and preserve inviolate the secrets of 
my client, and will accept no compensation in connection with his 
business except from him or with his knowledge and approval; 

I wiU abstain from all offensive personality, and advance no fact pre- 
judicial to the honor or reputation of a party or witness, unless required 
by the justice of the cause with which I. am charged; 

I will never reject from any consideration personal to myself the cause 
of the defenseless or oppressed, or delay any man's cause for lucre or 
malice. SO HELP ME OOD. 

We commend this form of oath for adoption by the proper 
authorities in all the states and territories. 

[NoTB.— The foregoing Canons of Professional Ethics were adopted 
by the American Bar Association at its thirty-first annual meeting at 
Seattle, Washington, on August 27, 1908. 

The Canons were prepared by a committee composed of 
Henry St. George Tucker, Virginia, Chairman. 
Lucien Hugh Alexander, Pennsylvania, Secretary. 
David J. Brewer, DiMrict of Columbia. 
Frederick V. Brown, Minnesota. 
J. M. Dickinson, Illinois. 
Franklin Fernss, Missouri. 
William Wirt Howe, Louisiana. 
Thomas H. Hubbard, New York. 
James G. Jenkins, Wisconsin. 
Thomas Goode Jones, Alabama. 
Alton B. Parker, New York. 
George R. Peck, Illinois. 
Francis Ljrnde Stetson, New York. 
Esra R. Thayer, Massachusetts.] 



CANONS OF ETHICS. "' ' '^ 17 

INDEX AND SYNOPSIS OP CANONS. ^. ; | 

PREAMBLE, pp. ZA. ^ 

THE CANONS OF ETHICS, pp. 4-13. 

1. Thb Duty op thb Lawteb to the Cottbts. ((1, 2, 4; iii, iv, vi.)* 

2. Thb Seudgtion op Judges. (69.)* 

3. Atiempts to Exebt Pebsonal Influence on the Coubt. (8, 

16.)* 

4. When Counsel fob an Indigent Pbiboneb. (64; xviii, zzi, 

xxiii.)* 

5. The Defence ob Pbosbcution of Those Accused of Cbime. 

(14; XV.)* 

6. Advebse Influences and Conflicting Intbbbsts. (37, 28, 24, 

25; viii.)* 

7. FlIOFBSSIONAL COLLEAGUES AND CONFLICTS OF OPINION. (42, 49, 

60, 48; vii, xiv, xvii.)* 

8. Advising upon the Mebits of a Client's Cause. (38, 35; xi, 

xix, XX, xxxi^ xxxii. See also xxx.)* 

9. Negotutions with Opposite Pabtt. (46, 47, 51 ; xliii, xliv.)* 

10. AOQUIBING InTEBEST IN LITIGATION, (xxiv.)* 

11. Dbaung with Tbusv Pemh»ebtt. (40; xxv, xxvi.)* • 

12. FixiNa THE Amount of the Fee. (54, 55, 56, 58; xviii, xxviii, 

xxxviii, xlix.)* 

13. Contingent Fms. (57; xxiv.)* 

14. Suing a Client fob a FisE. (53; xxvii. See also xxix.)* 

15. How fab a Lawteb Mat Go in Suppobtino a Client's Cause. 

(11; i, X, n^xii, xiii, xiv, xl.)* 

16. Restbaining Clients fbom Impbopbdsties. (44.)* 

17. Ill Fbeung and PfeBSONALmES Between Advocates. (31^ 32; v.)* 

18. TREATMENT OF WITNESSES AND LITIGANTS. (59, 30; ii, XXV, xlii.)* 

19. Appeabancb of Lawteb as Witness fob E^s Client. (21, 22; 

XXXV, xvi.)* 

20. Newspapeb Discussion of Pending Litigation. (19, 20.)* 

21. PuNcruALiTT AND EXPEDITION. (6, 36; See xxxvi.)* 

22. Canon ANif Fairness. (5; xli.)* 

23. Attitude Toward Jubt. (60, 61, 17, 63; xlvii.)* 

24. Right of Lawteb to Contbol the Incidents of the Tbial. 

(33; X.)* 

25. Taxing Technical Advantage of Opposite Counsel; Agbee- 

MBNTS WITH HiM. (45, 43, V, ix.)* 

26. Pbofessional Advocact Otheb than Befqbb Courts. (27.)* 

27. Advertising, Direct ob Indibect. (18.)* 

28. Stibbing Up Litioation, Dibbgtlt ob Thbough Agents. (23.)* 

29. Upholding the Honob of the Profession. (9, 65, 12; xxxiii, 

xxxiv, xxxvii, xxxviii.)* 

30. Justifiable and Unjustifiabi^ Litigations. (15; x, xi, xiv.)* 

31. Responsibilitt fob Litigation. (15; x, xi, xiv.)* 

32. The Lawteb's Dutt in its Last Analtsis. (66; xxi, etc.)* 
OATH OF ADMISSION, pp. 13-14. 

*The Arabic numerals in the brackets immediately following the 
QOioptic titles of the canons are cross-references to the compilation of 
canons as set forth in Appendix B of the 1907 report of the Association's 
Committee on Canons of Ethics (A. B. A. Reports XXXI, 681-684) ; 
the Raman numerals are cross-references to Hoffman's Resolutions, 
reprinted m Appendix U of the committee's 1907 report (id. 717-735). 



TRANSACTIONS 

OF THE 

FORTY-FIFTH ANNUAL MEETING 

OF THE 

American Bar Association 

HELD AT 

SAN FRANCISCO, CALIFORNIA 
August 9» 10 and 11, 1922 

The Forty-Fifth Annual Meeting of the American Bar Asso- 
ciation convened at San Francisco, California, with Gordenio A. 
Severance, President of the Association, in the Chair. 



FiBST Session. 

WedMsday, AiLgust 9, 1922, 10 A. M. 

The President : 

It gives me great pleasure to introduce Governor Stephens, 
of California, who will speak a few words of welcome to the 
Association. 

William D. Stephens, Governor of California: 
I come this morning, not only as a citizen of this great state, 
but also as the Governor of this Commonwealth, to bid you 
welcome to this Golden State, this land of sunshine, this country 
of the out-of-doors. And, in a few words, I desire to express 
something of what our people feel on this day as regards this 
great meeting. 

In the very early days of California, and before the coming 
of the Americans in any great number, and when the Spanish 
language and custom^ prevailed, the measure and quality of 

(19) 



20 AMERICAN BAB ASSOCIATION. 

welcome and hospitality to the guests was contained in the 
greeting '^ This house is yours, Senor/' The language and the 
customs have long since changed, but the spirit which actuated 
that sentiment is as real and fervent today in California as in 
those historic days. 

The people of California in their pride of citizenship in a 
state which contributes so much to human enjoyment and 
human welfare as well as to prosperity, have always taken a keen 
delight in sharing the joys and attractions of this fair land with 
others, perhaps not so fortunate. Mindful of this, I very greatly 
appreciate the privilege which has been afforded me today of 
standing before this distinguished gathering of jurists and 
lawyers representing the American Bar Association, and on 
behalf of the people of California as a whole and the citizens of 
this truly Californian city of San Francisco in particular, 
extending to you a California welcome, as warm and genial as 
its simshine, as enduring as its snow-capped mountains, and as 
comprehensive as the length and breadth of its boundaries. 

On behalf of the people of California I want to thank you 
for the signal honor you have paid us in coming here to hold 
this, your forty-fifth annual meeting. During the forty-four 
years since the first meeting of your Association in Saratoga 
Springs in the great State of New York, not only has the 
profession of which you are honored members been benefited, 
but the nation at large has profited by the constructive work 
and forward-looking policies of your organization. TTpon the 
roster of your membership are to be found the names of men 
who by their strength of character, their ability and intellectual 
attainments, have brought honor and distinction to the country 
and have had much to do with shaping its destiny. 

I believe I am safe in saying that the development of Ameri- 
can law in California is one of the most interesting and romantic 
chapters to be found in the entire juridical history of this 
country. To the pioneers of 1849 is largely due the adoption 
of the principles of the common law in this state. Prior to that 
time and when the native Califomians and Mexican people were 
in' possession, affairs of government and of the people were ad- 
ministered under the Mexican law then in force, but the coming 
of over 70,000 Americans during that one year of 1849 resulted 



ADDBESS OF WBLCOKB. ^1 

in an almost immediate change in the system of law^ practice 
and procedure. Just as the first settlers on the Atlantic CoaAX 
brought with them the common law of England and established 
it in the uninhabited portions of that section of the country, 
so did the emigrants from the oommon law states east of the 
Bockies bring with them the same system of law and establish 
it here ill a country, then almost equally unpeopled. Among 
those pioneers were lawyers whose great abiUI^ was even then 
recognized, and who in after years served the nation with great 
distinction and honor. I refer to such men as Justice Stephen J. 
Field, to whom the State of GaUfomia is indebted for the first 
Practice Act of California^ now known as the Code of Civil 
Procedure; who also wrote the Criminal Practice Act, now the 
Penal Code; whose work in connection with the other members 
of the first Supreme Court of this state brought recognition of 
that tribunal as being second to no other state tribunal in the 
country; who, as Associate Judge of the Supreme Court of the 
United States, covering a period of thirty-five years, added so 
much to what is now the accepted law of this country as to 
entitle him to the distinction of having been one of the greatest 
jurists his nation has ever produced. 

California also has contributed to the Supreme Court of the 
United States another outstanding figure in the person of 
Associate Justice Joseph McKenna. I might also mention in 
that connection such leading jurists as Judge H. A. Hastings, 
the first Chief Justice of the state and the founder of the Hast- 
ings Law School; Judge Peter H. Burnett, Associate Justice 
of the Supreme Court, and, by the way, the first Governor of 
California under the American rule ; Judge Joseph G. Baldwin, 
Associate Justice of the Supreme Court, also the author of that 
delightful work "Flush Times id Alabama and Mississippi"; 
Judge Hugh Murray, one of the most remarkable lawyers who 
ever sat on the Bench, who died at the age of 31 years after 
having then served for four or five years as Chief Justice of the 
Supreme Court. In the later years, the lawyers of this state 
remember with pride such great lawyers and jurists as McKins- 
try, Wallace, Bhodes, Sharpstein, Boss (now Judge of the United 
States Circuit Court of Appeals for the Ninth Circuit), Thornton, 
Beatty, and many other men of equal learning and distinction. 



22 AMERICAN BAR ASSOCIATION. 

I have referred to the fact that upon you as lawyers and 
jurists rests primarily the duty of upholding the principles of 
constitutional law given us by the fathers, as well as the great 
body of law based upon those principles. It is a great responsi- 
bility. I do not hesitate to say that if our form of Government 
and, indeed, our civilization shall survive, it is absolutely essen- 
tial that respect for the law be insisted upon. At no period in 
our history has there been greater need for obedience to law and 
the orderly processes of the law. 

To such .men as compose the membership of this great organi- 
zation, to the members of the American Bar, to the men who by 
their intellectual attainments occupy the front rank of their 
profession, and whose training fits them to formulate and inter- 
pret the law, must this nation look in large part for the solution 
of these great problems which are now before us. In that direc- 
tion lies a great opportunity for you to bring together whatever 
discordant and opposing elements there may be under a system 
of legal procedure which will insure justice, as well as protec- 
tion, to all. 

In conclusion, I again beg you to believe that the arms of the 
people of California are open wide to y6u with the earnest 
hope that your deliberations here may result in the greatest 
measure of good to the entire nation, and that the recreation 
which will be afforded you by the hospitable people of San 
Francisco, may leave a pleasing and abiding memory of Cali- 
fornia in years to come. 

The President: 

I now have the pleasure of presenting to you Maurice B. 
Harrison, of the San Francisco Bar, who will extend to you a 
few words of greeting. 

Maurice E. Harrison, of San Francisco, Cal. : 

This meeting is a memorable occasion for the Bar of Cali- 
fornia. Although our situation is remote from the great western 
centers, we are acquainted with the high purposes and the sub- 
stantial achievements of this Association and we have learned 
from our own history the lesson of the essential unity of Ameri- 
can law and of the necessity of united action on the part of 
American lawyers. The legal experience of this state has been 



ADDBESS OF WELCOME. 23 

in some respects unique. Its early lawyers came from all parts 
of the nation — ^from north and south and middle west — ^and 
they were enabled to build the foundations of our legal structure 
by their common fealty to a common system of law. New 
England gave us in Stephen J. Field the greatest of our pioneer 
judges, while the South gave us, in Bandolph and McAllister 
and Garber, the leaders of our early Bar. Our first constitution 
waa modelled on those of New York and Iowa. Our property 
law is largely founded on that of New York and Texas. Of 
these different American elements the law of this statue has been 
fashioned. The lawyers who came to Califomia from every 
eastern state after the American conquest found a native popula- 
tion accustomed to the rule of the Civil Law under Mexican 
occupation; and they established the common law in its place. 
They found a mining population all too ready to disregard the 
orderly processes of justice in favor of lynch law and mob 
violence, and they obtained the recognition of the supremacy 
of the courts after repeated struggles with the impulses of 
disorder in a new and turbulent community. They enriched 
the jurisprudence of America by translating into actual law 
the customs of the miners with regard to the appropriation of 
water. Fifty years ago, under the inspiration of David Dudley 
Field, a former President of this Association, they dared to 
make the experiment of systematizing and to some extent modi- 
fying the principles of the American common law. If at times 
4he statute law of this state may have seemed to be radically 
experimental, you, th^ men who influence the law of other states, 
have had at least the benefit of our experience. The public 
utility and workmen's compensation acts of the western states, 
novel though they seemed at the time of their enactment, are 
now a normal element in American legislation. And throughout 
our state's lifetime, we who have been so largely governed by 
federal law, both in our seaports on the coast and on our public 
lands of the interior, we who have known the splendid traditions 
of our own federal Bench, have never lost sight of our brother- 
hood with the lawyers of other states. Around the Bay of 
San Francisco are three prospering law schools which maintain 
the standards recommended by this Association; and this year 
we shall submit to the referendum of the voters of California 



24 AMERICAN BAB ASSOCIATION. 

the question whether the standards of the profession shonld be 
protected by prohibiting the unlawful practice of the law. And 
if at this time, when the lofty patriotism of wartime may seem 
to the casual observer to have been quaffed so deeply as to leave 
only the dregs of a mean bigotry and intolerance, we can help to 
repudiate the suggestion that American ideals of justice have 
failed and to reassert their power to deal with the needs of a pe- 
riod of reconstruction ; if we can help you to justify our common 
conviction that the lawTepresents more than the sanction of the 
sheriff who enforces it, and more than the influence of selfish 
interests which sometimes twist it awry, and that it is in truth 
an attempt to reach the goal of certain and even-handed justice, 
our service, gentlemen, is at your command. 

The President : 

Your Excellency and Mr. Harrison, we are very grateful, 
indeed, for. your gracious welcome to California. Many of us 
have received this same generous, kind-hearted welcome to this 
beautiful state many times. Some of us are here for the first 
time. But those who come to California this year in their initial 
trip across the Continent, knew all about the state before they 
came. When we decided to bring the Association out here this 
year, we knew we were not taking any risk, so far as hospitality 
was concerned. Our only fear was that we might so suffer 
from over-hospitality that we would be unable to attend to 
our legitimate business. 

Seriously, it is a great pleasure, for all the members of this 
Association who have come from east of the mountains to visit 
this beautiful state. It is immaterial whether we first looked 
down into the depths of the blue canyon, or dropped over the 
Cajon Pass into the smiling valleys with the golden apples and 
the flowers of the south — California always gives a thrill. It is 
different from any other state. Tou are different in your history. 
There is an air of old romance that hangs about this state that 
we are deprived of in the more prosaic regions of the east. You 
not only have your beautiful scenery, your lovely fruits and 
flowers, but you have the story of the old padres, who established 
their missions up and down this coast, whose names and whose 
religion are perpetuated in the names of your cities. And there 



BBADIKa OF LETTEBS. 26 

is 80 much of that little touch of the old life etill hanging about 
California^ that it has a charm which^ as I have said^ we are 
deprived of in the harsher regions of the east 

Beyond that^ we are all very conscious, as was said by the 
Governor, that the old greeting, " My house is yours,*' has been 
kept alive under the American occupation. Your hospitality is 
unbounded; your climate, your scenery, your people are charm- 
ing, and we are very happy to be here, and know we are going 
to be very happy while we are here. 

The Secretary then read a telegram from the President of the 
United States. 

WnnB HousB, Washinoton, D. C. 
Hon. Cordenio A. Sevenmce, PreMenl, American Bar Assooiaticn, San 
Francisco, Calijomia, 

It alwajrs ia a pleasure to place on record, at the time of the annual 
convention of the American Bar Association, an expression of confi- 
dence in its aims and ends. Its long career of active participation in 
taping the ethical ideals and practical policies of our country has been 
uniformly marked by a safe and steady progress toward the realization 
of that high destiny which is our finest national aspiration. Its counsels 
have been those of liberality and constructive purpose, restrained and 
moderated by a fitting sense of responsibility for the preservation of 
all that is good and useful in existing institutions. 

There never was a time when our country, indeed the whole world, 
stood more in need of clear-visioned comprehension of the problems 
whi<^ confront human institutions. 

I cannot refrain from urging upon your Association the importance of 
considering these problems in the light of the broadest perception of 
their hiunan beanngs. Those who would highly serve their fellows 
have need for full measure of intellectual honesty, together with 
courage to dare greatly. To whom better than your own profession, 
learned in the law, understanding its unending evolution, should the 
community turn for guidance and help in trying times. 

Warbbn G. Habding. 

The Secretary then read a letter from the Lord Chancellor 

of Great Britain. 

HovsB OF LoBDS, July 18, 1022. 
Cordenio A. Severance, Esq^ President, American Bar Association, 
Sm: 

Lord Shaw is no doubt well known to you as a member of our supreme 
tribunal, sitting both as a Lord of Appeal in ordinary, and as a member 
of the judicial Committee of the Privy Council. Between the Ameri- 
can Bar on the one hand and the English and Scottish Bars on the 
other, there are many close, intimate bonds. We have lately had the 
privilege of welcoming here in England your great and genial Chief 
Justice. Now we send Lord Shaw to you, with a full confidence that, like 
Mr. Taft,lie will draw those bonds still closer. He is, indeed, a very wise 
and learned Judge. I send through him my best wishes for the prosperity 



26 AMERICAN BAR ASSOOIATION. 

of the American Bar Association. Mutual knowledge will produce 
mutual confidence, and such visits as those of Mr. Taft and Mr. Beck to 
England, and of Lord Shaw to the American Continent, are the best 
means whereby we can learn to know and trust each other. ^ 

Yours faithfully, 

BmKENHBAD. 

I 

1 

The Secretary then read a telegram from the Attorney Gen- 
eral of the United States. 

Washikqton, D. C, August 8, 1922. 
Hon, C. A, Severance, President American Bar Association, San Fran- 
cisco, CaUforrua, 
I sincerely regret my inability to be present at the meeting of the 
American Bar Association. The pressure of pubhc business compels my 
presence here. Kindly accept and convey to the officers and my fellow 
members of the American Bar Association my highest respect and the 
deep gratitude I feel towards the members for their support of the 
Department of Justice in its efforts to maintain resfpect for law, to 
protect life and property, and to support the fundamental principles 
of government so sacred to the liberty, security, peace and prosperity 
of the American people. 

H. M. Daughebtt, 

AUomey General, 

The Secretary then made several annoimcements relating to 
certain events of the meeting. 

The President: 

One of the most charming events of our stay in California this 
week will be a visit to the wonderful grove of redwoods of the 
Bohemian Club. All arrangements for that excursion are in the 
hands of Mr. Prank P. Deering, of the San Francisco Bar. 

Praak P. Deering, of San Francisco, then made an announce- 
ment relating to the excursion. 

The President : 

The next order of business is the report of the Secretary. 

(The Secretary's report was stibmitted. See report, page 
103.) 

The President : 

As the report of the Secretary requires no action, it will be 
ordered placed on file. 

The next order of business is the report of the Treasurer. 
{The Treasurer's report was submitted. See report, page 
106.) 



ELBCTION OF KEKBEBS. 27 

The President : 

The report of the Treaaurer will be referred to the Auditing 
Committee. 

Next in order is the report of the Executive Committee^ which 
will be read by the Secretary. 

(The report of the Executive Committee was read. See 

report, page 110,) 

The Secretary: 

I move, Mr. President, the approval and adoption of the 
report submitted by the Executive Committee. 

The motion was seconded from the floor and carried. 

The President : 

The next order of business is the nomination and election of 
members. I believe there are a few names to be voted on at this 
time. 

The Secretary: 

The Chairman of the Membership Committee has seventeen 
applications^ duly certified by the Local Council and recom- 
mended by the General Council at its session this morning for 
election to membership. They are all properly certified^ and all 
are now eligible for election. It is not necessary to read the 
names or the states they represent unless requested. I move 
that they be duly elected members of the Association. 

The motion was seconded and carried. 

The President then delivered the Annual Address. 
(See Address on page 163,) 

Thomas W. Shelton and S. E. Ellsworth offered resolutions 
which, wiihout reading, were referred to the Executive Copi- 
mittee. 

The Association then took a recess until 2.80 P. M. 



28 AMSaiCAN BAR ASSOCIATION. 

Second Sbssion. 

Wednesday, August 9, 1922, £J0 P. M. 
In joint session with the California Bar Association^ Jeff 
Paul Chandler^ President of the CaUfomia Bar Association, 
presiding. 

Chairman Chandler: 

It is a very great privilege and honor for the California 
Bar Association to have the privilege of meeting with the Amer- 
ican Bar Association. We live away out on the fringe of the 
continent, and we hear of the eminent gentlemen in our pro- 
fession; from time to time, we follow their careers; and it is a 
great privilege for us to meet them personally and to draw inspi- 
ration from them. 

The Bar of the State of California is, in its humble way, 
trying to carry on the traditions of the profession of the law, 
and to see that this comparatively new commimity, compara- 
tively new part of the United States, has a reverence for the law 
and that the Constitution which has been given to us by our fore- 
fathers may be carried out in all of its integrity. Little did 
they think, when they drew that instrument, that this country 
would ever extend to the Pacific Coast. It would have been very 
doubtful, indeed, in their minds, had it been suggested, whether 
a territory as large as the present United States could be success- 
fully operated under one form of government. When the first 
Americans came to this state, California was very far from the 
rest of the states. And, as you have been told frequently since 
you came, because we are so proud of it, the earliest lawyers 
in this community did establish the government and it has been 
perpetuated by lawyers who have helped to build up this splen- 
did community. 

And let me extend to you, in closing this part of my remarks, 
out profound gratitude and respect and appreciation for your 
presence here among us. 

After gold was discovered in California, then came the ques- 
tion of water. Gold would not make a permanent state — ^it was 
necessary to develop agriculture, and the life of agriculture in 
this part of the country is water. * They had to develop a system 
of water. They had to adjudicate the rights as between the 



AI>DB£SS OF JUSTICE SHAW. ^9 

different settlers on the streams. And a great body of law has 
been built up in that connection^ and has seryed to develop the 
resources of this country. 

In the early days of Los Angeles^ when it was a very arid 
country, when we needed much water and didn't know whether 
or not we had it, when water rights were rather inchoate, 
unknown, and occasion had not arisen very frequently for adju- 
dicating the differences which subsequently did arise — at that 
time a young man came from Indiana, and we got acquainted 
with him in Los Angeles, and then elected him to the Superior 
Bench. He began the study of law — or the study of water law, 
and in the course of time he came to be recognized as the great 
authority upon water in our part of the state, and we were very 
proud of him. He was elevated to the Supreme Court of this 
state^ and later became Chief Justice of the Supreme Court of 
California. And in these higher positions, he came to be recog- 
nized as the authority upon water law in California, and perhaps 
in the west. His genius has aided in creating that fine system 
of water law which is now in operation, to the perfect satisfac- 
tion of all of the residents of this commonwealth, and perhaps 
those of the West. 

I take great pleasure in introducing to you Judge Lucien 
Shaw, Chief Justice of the Supreme Court of the State of 
California. 

Chief Justice Shaw then read his address upon '* The Develop- 
ment of Water Law in California." 

{See Address, page 189.) 

Chairman Chandler: 

The next address upon the program was to have been delivered 
by Governor Henry J. Allen, of Kansas, on the subject " Kansas 
Industrial Court.*' Governor Allen has telegraphed that it will 
be impossible for him to leave the State of Kansas. He has 
therefore requested Senator F. Dumont Smith, of Kansas, to 
deliver an address upon the subject that had been assigned to 
him. Senator Smith helped draw the law. He has been special 
counsel for the State of Kansas during the entire time of the 
administration of this law, and he is very familiar with its pro- 
visions. 



30 AlCEBIOAK BAR AS600IATI0N. 

I take pleasure in introducing to you Mr. F. Dumont Smith, 
of Kansas. 

The address of F. Dumont Smith was then delivered. 
(See Address, page 208.) 

The Association then took a recess until 8 P. M. 

Thibd Session. 

Wednesday, August 9, 1922, 8 P. M. 

The meeting Was called to order by the President, Cordenio A. 
Severance. 

The Secretary made some further announcements, and then 
read the list of the new General Council nominated by the 
respective state delegations. The nominees were declared elected 
without further action on the part of the Association. 
(See List of Qenerai Council, page H8.) 

The President: 

We have been happy for a number of years to receive as our 
guest some distinguished member of the British Bar or the 
British Bench. Sometimes, on rather rare occasions, those rep- 
resentatives are Englishmen — ordinarily they are Scotchmen. 
As you know, the Scotch for some time have been employed 
largely, as I have been told by my friend MacKenzie Gordon, of 
San Francisco, in governing the British Empire. In 1913, 
the members of the Association who were at Montreal, will recall 
the remarkable address delivered by another great Scotch Judge, 
Lord Haldane. You will remember that he at that time was the 
Lord Chancellor, and, to do us the compliment of meeting with 
us, he was obliged to place in the commission of England the 
great seal of the King, and I believe also the conscience of the 
King, of which he is the keeper. It was a great compliment to 
us, because it was the first time since Cardinal Richelieu that 
any Lord Chancellor has been without the dominion of the 
King. Since then, I think that rule has been further violated. 
Then again, we had Lord Finlay, another Scotchman, who is 
now sitting upon the great international court at The Hague. 
Tonight, for the third time within these few years, we have the 



ADDRESS OF tOBD SHAW. 31 

pleasure of greeting another great Scotchman, a gentleman with 
a most remarkable career in politics^ but always chiefly in the 
line of his own profession of the law. Like our own Chief 
Justice^ he has not ceased to be a lawyer because he is a judge. 
It gives me the greatest pleasure to present to you as the first 
speaker this evening, Lord Shaw of Dunfermline, who will 
now address you. 

Lord Shaw of Dunfermline : 

This address was framed before I left the British shore. I 
thought I was to speak to men. I find a charming variation in 
your legal procedure, and that a large and beautiful portion of 
the audience is composed of ladies. Now, ladies, don^t be dis- 
appointed. I must read the address as it was written, and it was 
written to the gentlemen of the Bar of America. But don't be 
disappointed, because, if the Chief Justice will permit me, 
gentlemen on this occasion will always embrace ladies. 

The address of Lord Shaw was then delivered. 
{See Address, page 219.) 

The President : 

We have listened tonight to a wonderful oration. I do not 
recall a more learned, lucid, or interesting address in the history 
of this Association. But, members of the Association, you have 
only heard from one side of the channel. You are now to hear 
from a gentleman who comes from a war-stricken country, but a 
country whose brave sons have not lost heart because of being 
war-stricken. 

The eminent lawyer from Paris who is to speak to you is 
showing a courage that I am sure none of us possess. I am 
confident no man in the Bar Association here, with the excep- 
tion of one or two gentlemen whom I see at my left, would have 
the courage to go to Paris and address an audience of French 
lawyers in their own tongue. But our friend comes to us so 
equipped that he can speak to us in English. It is only in 
recent years, as you all know, that our French friends have re- 
garded it as essential to know any language but French, because 
every gentleman was supposed to know French. But they have 
found in the last five or six years that, while Americans can't 

2 



32 AMERICAN BAR ASSOCIATION. 

all speak French, they can fight like Frenchmen, and many of 
us are learning their tongue. 

I spoke of the meeting in 1913. We then had with us at 
Montreal that great French advocate Labori. He has passed 
away since then, but it is his intimate friend who has been 
named by the Council of Advocates of the City of Paris to speak 
to us tonight, and I have great pleasure in presenting to you 
Monsieur Henry Aubepin of the Paris Bar. 

The address of. M. Aubepin was then delivered. 
(See Address, poffe 244.) 

Adjourned until August 10 at 10 A. M. 



Fourth Session. 

Thursday, August 10, 1922, 10 A. M. 

The President : 

Gentlemen of the Association, I have as much of assurance as 
any decent man ought to have, but I haven't enough to make a 
speech presenting to you the speaker this morning, as you know 
him so much better than you do me. The Chief Justice of the 
United States. 

Chief Justice Taft then delivered his address entitled " Pos- 
sible and Needed Reforms in the Administration of Justice in 
the Federal Courts/' 

(See Address, page 250.) 

« 

The President : 

We will now listen to a report of the Executive Committee 
upon a resolution which was yesterday introduced, and which 
embodies the suggestion with which the Chief Justice closed 
his remarks. This report is the unanimous report of the Exec- 
utive Committee, and will now be read by the Secretary. 

The Secretary : 

The resolution is as follows : 

Whereas, One of the gravest duties confrontine the judges and 
lawyers of America is an administration of justice that will command 
the respect and veneration of the people, 



RESOLUTION ADOPTED. 33 

Resolved, Pint, that Congress be and it is hereby respectfully peti- 
tioned to provide by suitable statutory law for the creation of a com- 
mission, the personnel of which shall be appointed by the President 
and be composed of two Justices of the Supreme Court, two Circuit 
Judges, two District Judges, and three members of the Bar of high 
standing and qualified by learning and experience. Such Commission 
shall prepare and recommend to Congress amendments to the present 
statutes and the judicial code, authorizing a unit administration of law 
and equity in one form of civil action. 

Second, that such act shall provide for a permanent commission, 
created in the same manner, with power to prepare a ^stem of rules 
of procedure for adoption by the Supreme Court, with power to amend 
from time to time. Such rules and amendments, after approval by 
the Supreme Court, shall be submitted to Congress for its action, and 
shall become effective in six months after such submission, if Congress 
shall take no action thereon. 

The Committee moves the adoption of that resolution.- 
The motion was seconded from the floor. 

The President: 

It is moved and seconded that the report of the Committee 
as read by the Secretary, be adopted. Are there any remarks ? 
If not, all in favor of the adoption of the report will say " Aye.'* 
Opposed, " No." It is unanimously carried. 

The Secretary : 

At the request of the members of this Association and of the 
members of the Bar from the Pacific Coast States, your attention 
is called to the special notice on our program of a meeting of the 
members of the Bar from those states at 4.30 o'clock this after- 
noon in the Yosemite Hall of the Native Sons Building. A 
matter of importance to be discussed at that meeting is indicated 
on the program. 

At the session of the Association tonight, the first floor of 
the auditorium will be reserved for members of the American 
Bar Association and their wives until eight o'clock. After that 
the hall will be thrown open to the public. 

The President : 

The next order of business is the report of the Committee on 
Promotion of American Ideals. In the absence of the Chair- 
man of the committee, Judge Wade, of Iowa, the report will 
be read by B. E. L. Saner, of Texas, the second member of the 
committee. 



34 AMSEICAN BAB ASS00UT)[6^. 

Committee on Promotion of American Ideals: 

The report of the Committee on Promotion of American Ideak 
was read by Mr. Saner. 

{See Report, page 416.) 

E. E. L. Saner, of Texas: 

I move that this report be adopted, and the recommendations 
therein contained be approved. 

The President : 

I understand the mover of the motion has amended the written 
report .so as to provide that the committee to be appointed 
should, for the present, be a special committee, owing to the 
fact that no new standing committee can be created without an 
amendment to the Constitution. Are there any remarks to be 
made upon the subject? 

William H. Lamar, of the District of Columbia: 
It would hardly seem necessary to offer anything in support 
of this resolution, in view of the manifest way in which the 
proposition has been received by the Association. I have been 
requested to furnish to the meeting some data on the subject 
that may be of interest to you, however. 

This report of the committee covers a wide field of all classes 
of matter that is being injected into the public mind, from all 
of the discordant sources that tend to weaken the strength of our 
fundamental principles of government. Millions of newspapers 
and periodicals are putting out matter at all times that seriously 
affects the public mind. It is not with respect to the general 
class of literature of this kind that I would draw your attention 
at the present time. As solicitor for the Post Office Depart- 
ment for eight years, I had peculiar opportunity to see the So- 
cialistic and Communistic matter that is being published and 
circulated throughout this country. I simply wish to call atten- 
tion to the number of publications that are printing this matter 
and giving it to the public at all times. The present number of 
radical publications in this country, published in foreign Ian* 
guage and in English, amounts to over 600. These publications 
are such that it is difficult to determine their entire circulation, 



BEP0BT8 OP SE0TI0N8, 35 

but some 87 of the 600, weekly and daily^ go to the American 
people of the class who read this kind of matter, to the extent 
of over 700,000 copies. Yon find them on the news-stands. But 
this number that I am talking about are sent through the mails. 
Of the remainder of the 600 publications, there is no definite 
way of determining their circulation from oflBcial sources. But 
it is evident that there are from two and a half to three million 
people in the United States that read this class of injurious 
matter, so forcibly referred to by our President, and referred 
to in a more general way in the report of the committee which 
has just been read. 

The President : 

If there are no further remarks upon the report, the question 
is on the adoption of the report of the committee and the ap- 
proval of its recommendations. All in favor of the adoption 
and approval will say '^ Aye.*' Opposed, " No.*' I am glad to 
say it is unanimously adopted. 

The Association then took a recess until 2 P. M. 



Fifth Session. 

Thursday, August 10, 1922, 2 P. M. 

Charles Thaddeus Terry, of New York, Acting Chairman : 

Will the Associatioi> please be in order. We have a precise 
program for this afternoon's session. 

Section of Criminal Law : 

W. 0. Hart, of Louisiana: 

Mr. Abbott being imavoidably absent has requested me as 
Vice-President of the Section to make a very brief report. 

The report of Section of Criminal Law was then read. 
{See Report in Appendix,) 

Mr. Hart: 

I move that the report be received, and be made a part of the 
records of the Association. " 

The motion was seconded and carried. 



36 AMERICAN BAR A8S0GIATI()N. 

Comparative Law Bnreau: 

Robert P. Shick, of Pennsylvania: 

I have no report to submit, other than the simple annals of 
the work which we have done during the past year, and the fruit 
of which you have seen in the April number of the Journal. 
In this day of budget reform, it might be well to call the Asso- 
ciation's attention to the fact that the Bureau has not cost the 
Association one dollar during the last year, and for several 
years last past. We have, however, quite a number of publica- 
tions that I think would be of interest to the members of the 
Association, and we invite your attention to those translations of 
foreign codes. They will furnish you quite a little of intellectual 
pabulum, if you would purchase them, and you would also help 
us to go forward in the work of making other transactions. We 
have one large translation, a monumental piece of work, the 
translation of a Spanish publication, which I think is of great 
interest out here in California, and particularly all through the 
Spanish State*. We would be very much encouraged if the 
Association would take a little more interest in the publications 
of our Bureau, purchase them, purchase those that we have, and 
enable us to secure the funds with which to go forward with our 
work. 

We have, during the past year, realized the practical value of 
our work. We have had inquiries from 'a great many sources, 
so that the information that we Beem to be getting together, all 
research work, seems to be of more and more practical value, in 
view of the increasing international relations — for instance, we 
have had an inquiry frpm Czecko-Slovakia. They want to be in 
touch with American lawyers, and they have applied to us, and 
they are going to bring to that Bureau a knowledge of the Czecko- 
Slovakia conditions, and we will get the information of our con- 
ditions to them through our Journal. I tliink the Association 
owes it to itself, as well as to this Bureau, to take a little more 
interest in our work. As Secretary, I welcome the cooperation 
of all tlie members, and I hope that, during the coming year, I 
may hear more from the members of the Association, and that 
they will take a greater interest in our work. 



REPORTS OF SECTIONS. 37 



Judicial Seetion: 



John P. Brificoe, of Maryland: 

This Section has a report, and I want to sa;y that we have had 
a very successful year^ and an unusually large attendance of 
judges at this time. It has been very satisfactory to us. If you 
recall, this Section was added and made a part of the American 
Bar Association at Montreal in 1913, and under the resolution 
that was adopted, the Conference of Judges is required to meet 
every year, just prior to the meeting of the American Bar Asso- 
ciation. Unfortunately for our Section, we have a very short 
time. The judges are not allowed to do much talking during 
the year, and when they get thus far away from their homes, 
as I am, for instance, away from my home in the east, we like to 
do as much talking as we can, and a day is not very much time 
for it. Unfortunately our Section has a conflict with two other 
sections, the Criminal Ijaw and the Bar Delegates Conference, 
which meet at the same time. The object, of course, of this 
Section, Mr. Chairman, is probably well known. It was estab- 
lished for a conference of judges, and a discussion and inter- 
change of ideas as to their duties, and the responsibility of the 
judiciary. All federal and state judges of record who are mem- 
bers of this Association are members of this Judicial Section. 
We have had a very pleasant meeting. Two very interesting 
papers were read — one by Justice Wilbur of the Supreme Court 
of California,' another by Justice Conrey of the Court of Appeals 
of Los Angeles. We had a very pleasant, delightful dinner. We 
had Chief Justice Taft, I»rd Shaw, and the representative of 
the Bar of Franco — M. Aubepin — ^also our former Ambassador 
to Great Britain — Mr. John W. Davis — and Judge Hunt. I 
would like to state that the registry of judges at this time went 
up as high as 130, We never had over 100 before this. 

That is all we have to report, except that during the year we 
assisted the Committee on Uniform Judicial Procedure, and its 
representative, Mr. Shelton, in endeavoring to get through Con- 
gress the bill providing for making new rules &r the United 
States Courts, some of which were spoken of by our Chief Jus- 
tice this morning in his address. We had the pleasure of going 
to Washington with Mr. Shelton, and also with our President, 



38 AMERICAN BAR ASSOCIATION. 

Mr. Severance^ and appearing before the Goinmittee on Judiciary 
of the House of Bepresentatives, and also of the Senate. The 
adoption of those rules has been urged by the Judicial Section 
of the American Bar Association since it has been in existence 
practically. There seemed to be some objection, both in the 
House and the Senate, and both adjourn every year with these 
resolutions pending. 

I had a very pleasant talk with Eepresentative Volstead, of 
Minnesota, whom I suppose you all recognize as the father of 
the prohibition laws. He is very anxious* to get a favorable 
report. This Section stands ready, Mr. Chairman — ^and this is 
about the only report I have to make — to assist the main body, 
the parent body, the American Bar Association, in any way we 
can, at any time. 

The Chairman: 

Gentlemen, you have heard the report of the Judicial Section. 
What is your pleasure with reference to it? The chair will 
entertain a motion that it be received, appproved and made a 
part of the proceedings. 

The motion was made and carried. 

Section of Legal Education : 

John W. Sanborn, of Minnesota: 

The last meeting of the American Bar Association adopted 
certain standards for admission to the Bar. The Section of 
Legal Education was directed to do certain things with regard 
to those standards. The most important work was to call a con- 
ference of the bar associations of the country, with the purpose 
of asking the endorsement of those standards. 

Immediately following the meeting at Cincinnati, the Council 
of Legal Education requested the Council of the Conference of 
Bar Associations to call a special meeting of that Conference, 
to be held in Washington during the winter, for the purpose of 
considering the recommendations of the American Bar Associa- 
tion, with reference to the standards of admission to the Bar. 
The Council of Bar Association Delegates agreed to take the 



BBP0BT8 OF SB0TI0N8. 39 

burden of this, and the Conference was called^ and a joint com- 
mittee of the two Councils was entrusted with the arrangement 
The proceedings of the Conference have been published ai^^ 
distributed to the members of the Bar Association. That Con- 
ference endorsed the standards adopted by the American Bar 
Association. The Council on Legal Education was also directed 
to secure the direct endorsement^ as far as possible^ of the stand- 
ards by the various state bar associations of the country. The 
matter has been called to the attenti(m of the different state bar 
associations. It has been discussed by a number of them. Some 
of them have endorsed it^ some have left it over for further dis- 
cussion^ and, as far as the Council is now advised, no bar associa- 
tion has refused directly to endorse these standards. 

The Council was further directed to examine the law schools 
of the country, and to publish a list of the law schools which com- 
plied with the standards adopted by the American Bar Associa- 
tion, and also those that do not. ^That examination is a matter 
of some difficulty, and has been the subject of careful considera- 
tion by the Council. The law schools of the country have been 
asked for the information which is considered necessary, at least 
in a preliminary way, to make such a classification, and the 
information is now being furnished to the Council, and we expect 
to continue with that work. I hope, some time during the fall, 
at least to announce a preliminary list as to the classification of 
the law schools. 

Since the Washington Conference, the work of the Section has 
been largely administrative. A great deal more, however, has 
been done in the office of the Council than has been done here 
at this meeting, for instance. The report asks for no action on 
the part of the Bar Association, and I move that it be received 
and placed on file. 

The motion was seconded and carried. 

Section of Patent, Trademark and Copyright Law : 

A. C. Paul, of Minnesota : 

There are two matters that I am instructed, by the Patent 
Section, to report to this Association, the second of which re- 
quires some action by the Association. At the meeting last year 



40 AMERICAN BAR ASSOGIATIOK. 

at Cincinnati^ the Patent Section asked the American Bar Asso- 
ciation to endorse a bill that was then pending before Congress 
for the reorganization, to a certain extent, of the force of the 
Patent Office, and some increase in the force, and increaBe in 
salaries. There had been no increase in salaries of the Examiners 
of the Patent Office for a period of forty years, and we were unable 
to retain the skilled men in the office on the salaries that were 
being paid. The Association endorsed that bill, and it was passed 
by Congress and became a law on the 18th of February. I am 
very sure that the endorsement of that bill by this Association 
aided very .greatly in its passage by Congress, and the results are 
all that we hoped. The men are remaining in office very satisfac- 
torily, there is an entirely different spirit among them, the work 
is being hurried and brought up to date, and I think the 
Patent Office will very soon be in very satisfactory shape in this 
respect. 

The second matter is this : For a period of two years the Pat- 
ent Section has been working on a revision of the Federal Trade- 
mark Law. There are, at the present time, seven federal statutes 
relating to trademarks. A committee was appointed at the 
meeting last year, to draft a bill for fortifying the trademark 
law, and making some changes therein. It is not the purpose of 
the committee to make any drastic changes in the law. The bill 
prepared by the committee has been printed, and the report of 
the committee printed and distributed. It will not be necessary 
for me to do more than call attention to that report. Yesterday 
the Patent Section adopted the report of the committee, and the 
Section now reports this bill to the Association, and asks its en- 
dorsement, so that the same may be presented to Congress. 

I move, Mr. Chairman, the acceptance of the report and the 
endorsement of this bill by the American Bar Association. 

The motion was seconded and carried. 

National Conference of Commissioners on Tlnif orm State Laws : 

Nathan William MacChesney, of Illinois: 
The National Conference of Commissioners on Uniform State 
Laws, as you know, meets for the six days preceding the meeting 



REP0BT8 OF SECTIONS. 41 

of the American Bar, as a body of official commissioners ap- 
pointed by the governors of the respective states under statutory 
authority. This Conference, held in San Francisco, has been one 
of the most successful in the thirty-two years of the history of 
the Conference, in results in securing the passage of approved 
acts. 

The Conference of Commissioners on Uniform State Laws, 
as most of you know, has a record which is second to no organi- 
zation in the country in constructive achievement, and it per- 
haps has contributed sis much to the reputation of the American 
Bar Association for constructive work in the field of law as anv 
organization connected with it. In fact, it has to its credit 399 
legislative enactments today, which are the law in various states 
of the union, three of which acts are in effect in California, the 
most notable being the Negotiable Instrument Act. The Confer- 
ence this year has to present, for your approval, through its 
President, and, as such. Chairman of the Uniform Law Com- 
mittee of the American Bar Association, four acts which have 
been discussed in a detailed way usual in that Conference. We 
employ expert draughtsmen. The matter is discussed year 
after year, until the act comes out in the form in which the 
Conference is ready to recommend it to the American Bar Asso- 
ciation, and to the legislatures of the country for adoption. 

I therefore, Mr. Chairman, beg leave to present the following 
formal report : 

To the American Bar Association: 

As President of the National Conference of Commissioners on Uni- 
form State Laws, I have the honor to report that the following acts 
have been approved by the Conference at its 1922 meeting and recom- 
mended for adoption by the several states: 
Uniform Declaratory Judgments Act. 
Uniform Illegitimacy Act*. 
Uniform State Law for Aeronautics. 
Uniform Fiduciaries Act. 

I ask that the above-mentioned acts be approved by the American Bar 
AsBociation and recommended to the states for adoption. Copies of the 
acts as approved by the Conference are herewith handed to the Secretary 
of the Bar Association. 

Respectfully submitted, 
Nathan William MacChbsnby, 
Premdent, National Coriference of Com- 
migsioners on Uniform State Laws, 

I move that the above-mentioned acts, in accordance with 
cnstom, be approved by the American Bar Association, and 



42 AMERICAN BAR ASSOCIATION. 

recommended to the various legislatures of the states of the 
union for adoption by them. 

The motion was seconded and carried. 
Conference of Bar Association Delegates: 

 ^ 

Clarence N. Gtoodwin, of Illinois: 

It is the desire of the retiring Chairman of the Conference 
to report to the American Bar Association informally, not by a 
written report. There are a number of things in connection 
with the work of the Conference that I desire to call to the 
attention of the American Bar Association. You are not all 
familiar with the work of the Conference, and so I will say that 
the Conference of Bar Association Delegates was originally 
called into being by a resolution presented by the Hon. Elihu 
Root, whose absence here we deplore, and passed by the Ameri- 
can Bar Association. The original Conference was held in 1915, 
and has been followed by Conferences each year. It has become 
an organic part of the American Bar Association, and it has a 
two-fold function. 

First, to collect from all the bar associations of the country 
such suggestions as they have to make, regarding a betterment 
in the administration of justice, better conditions in the Bar, 
and after considering that, to report their conclusions to the 
American Bar Association, and to the local associations. 

Its second function, which is quite as important as the first, 
is to receive from the American Bar Association, particularly, 
suggestions which it deems of importance, and bring them to 
the attention of the local bar associations of the country. 

Under the first head it took up the matter of legal aid. 
After considering it, it brought it to the attention of the Amer- 
ican Bar Association and the local bar associations, with the 
result that it became one of the major activities of the American 
Bar Association, and was presented to the meeting in St. Louis. 
Again, the American Bar Association, at the conclusion of the 
last conference held in Cincinnati, asked that a special confer- 
ence be called in Washington, so that it might present, at that 
conference, its suggestions and position with reference to stand- 
ards of legal education. That conference met in Washington on 



HEP0RT8 OF SECTIONS. 48 

• 

the 2dd and 24th of February^ and^ in addition to its Chairman^ 
was presided over by the Chief Justice of the United States, 
William G. McAdoo, John W. Davis^ and Hampton L. Carson. 

The Conference was attended by representatives of over 170 
bar associations, sending 660 delegates and alternates, and at 
the conclusion of two days, by an overwhelming vote, in the face 
of what had been most decided, but what continued to be dwind- 
ling opposition, the recommendations of the American Bar 
Association were adopted. 

The annual meeting of the Conference was held in this halL 
For some time the Conference had been known as the National 
Conference of Bar Association Delegates. By an amendment 
that was shortened to the National Conference of Bar Associa- 
tions. At the same meeting, owing to the absence of Elihu Boot, 
we found that our By-Laws prevented him from continuing as a 
member of the Council, because he had not been certified as a 
delegate. A By-Law was adopted, which provides that officers 
during their terms need not be appointed as delegates. There was 
also presented at that meeting a report on state bar associations, 
the progress made in various states towards the creation of ma- 
chinery for Bar government. We also listened to a most delightful 
address on the organization and government of the Bar of Paris, 
by Henry Aubepin. We also had the pleasure in the afternoon of 
listening to the President of the American Bar Association, on the 
subject of a better and more coordinated effort, on the part of the 
bar associations of the country, toward bringing them into closer 
contact, and making them a more efficient instrument for the 
better administration of justice. 

The result of the address, and the discussion that followed it, 
was the resolution for the appointment of a committee to investi- 
gate by what means this coordination can be brought about, and 
the feasibility of the federation of the bar associations of the 
country. This may be said, however, that the American Bar 
Association, through the Conference, has brought into close 
association with itself all the bar associations of the country, 
and is exercising, I believe, for the first time, decided and satis- 
factory leadership. 

There were some other resolutions adopted, one affirming the 
position taken in regard to th^ unlawful practice of the law, a^d 



44 AMERICAN BAR ASSOCIATION. 

approving what had been done by the Bar Association of Cali- 
fornia. With your permission, Mr. Chairman, I will embody 
the other resolutions in a formal report to the Bar Association. 
In conclusion, I would like to say that, at the evening session, 
we had the privilege of listening to Mr. McAdoo address the 
Conference on the subject of the duty of the lawyer to the nation, 
and also had the privilege of listening to a most delightful 
address by the Chief Justice of the United States, whose interest 
in the Bar is a matter of gratification to all of the members of 
the American Bar Association, and to the Bar of the country. 

The Chairman : 

The ordinary course will be taken with reference to this 
report of Judge Goodwin for the Conference of Bar Delegates, 
namely, that it be approved, and deemed part of the proceedings 
in a written form which he is to supply, unless there be an 
objection. There being none, that course will be followed. 

Committee on ProfesBional Ethics and OrievanceB: 

Thomas Francis Howe, of Illinois : 

The report of the committee has already been printed. Among 
other things, the report calls attention to the abuses that have 
arisen under the system of advertising by so-called patent attor- 
neys, many of whom are laymen admitted to practice in the 
Patent Office as attorneys in fact. The committee has recom- 
mended the adoption of the following resolution : 

Resolved, That the Association requests the Commissioner of Patents 
to include in the regulations for the conduct of those registering as 
attorneys in the Patent OflSce, a rule prohibitng the solicitation of busi- 
ness, so long as they are designated or allowed to describe themselves as 
patent attorneys. 

I move the adoption of that resolution. 
The motion was seconded. 

« 

The Chairman : 

Mr. Howe, would you be good enough to explain, perhaps a 
little more fully, just what that recommendation portends? 

Mr. Howe: 

Under a recently enacted statute, the Commissioner of Pat- 
ents is given authority to regulate the conduct of those laymen 



BBP0BT8 OF C0MMITIBB3. 45 

and attorneys who are registered as patent attorneys in the 
patent office. The Commissioner^ at some one^s suggestion^ 
asked the President of this Association, to appoint a committee 
to assist him in drafting rules governing the conduct of these 
so-called patent attorneys. I do not know just how far that 
committee worked and assisted him^ but the rules have been pre- 
pared, and instead of adopting a rule prohibiting solicitation of 
business by these attorneys, the rule was adopted that all adver- 
tisements which these attorneys wished to insert, should be 
prepared and submitted to the Commissioner or his appointees, 
for that purpose, before publication. I suppose you are all 
familiar with the many evils that have resulted from the publi- 
cation of many misleading advertisements by these so-called 
patent attorneys in the press, throughout the country, particu- 
larly in the rural districts, and your committee has thought 
it was advisable to strengthen, the hands of the Commissioner by 
advising him officially, if he so desired, as to what the American 
Bar Association's attitude towards the matter was. 

The Chairman : 

Members of the Association, you have heard the recommen- 
dations of the Committee on Ethics and Grievances. What is 
your pleasure ? 

On motion duly seconded, the resolution was adopted. 

Mr. Howe: 

I now wish to offer a further resolution, on behalf of the 
committee. The committee recommends that the following reso- 
lution be adopted : 

Resolved, That a special committee be appointed by the Prettdent 
to investigate and determine by what rights, if any, laymen who are 
registered as attorneys in fact in the Patent Office, and in the office 
of the Commissioner of Internal Revenue, use the words "patent at- 
torney'' or ^^ income tax attorney," in designating their wonc, and to 
recommend to the Association such action as may bring about the dis- 
continuance of these misleading designations. 

A. C. Paul, of Minnesota : 

Speaking for myself, and not for the Patent Section, I desire 
to say that I think the resolution offered by Mr. Howe, ought 
to go a little further. If a committee is appointed to investigate 



46 AMERICAN BAH ASSOOIATION. 

the matters referred to^ I think it should not be limited simply to 
the question of the use by practitioners before the Patent OflSce 
of the words *' Patent Attorney/* I took this matter up with the 
Commissioner of Patents a few weeks ago^ and he expressed his 
hearty approval of this resolution of the committee, but he 
suggested that it did not go far enough in the matter of investi- 
gation, and if it was limited to simply the use of these words, it 
probably would not accomplish very much. I have talked with 
Mr. Howe about the matter this morning, and I wanted to make 
a motion to amend this resolution, so that it will give the com- 
mittee, if it is appointed, the power to go somewhat further than 
is contemplated under the present resolution, and I have pre- 
pared an amendment, which I will ask the Secretary to read. 
I have changed it a little, Mr. Howe, but I th in k in a manner 
that will be acceptable to you. 

The Secretary : 

The amendment is: 

Add after the word " work " in the second resolution, the following : 
"To investigate the conditions in the Patent Office, and in the office 
of the Commissioner of Internal Revenue, with special reference to the 
practice of the so-called attorneys," and add, at the end of the resolution, 
the words, "and otherwise improve the practice before these depart- 
ments." 

So that the resolution shall read as follows : 

Resolved, That a special committee be appointed by the President 
to investigate and determine by what right, if any, laymen who are 
registered as attorneys in fact in the Patent Office, and in the office 
of the Conunissioner of Internal Revenue, use the words "patent at- 
torney," or "income tax attorney," in designating their woA. and to 
investigate conditions in the Patent Office and in the office of the Com- 
miasioner of Internal Revenue, with special reference to the practice 
of the so-called attorneys, and to recommend to the Association such 
action as may bring about the discontinuance of these misleading desig- 
nations, and otherwise improve the practice before these departments. 

The Chairman: 

The question is upon the amendment offered by Mr. Paul, of 
Minnesota. 

Mr. Howe: 

On behalf of the committee, I wish to say that we are glad 
to accept the amendment. 



BBPOBTB OF OOMMIITEES. 47 

The Chairman : 

The committee accepts the amendment, and therefore the 
motion is upon the resolution of the conamittee of which Mr. 
Howe is Chairman, as amended by Mr. Paul, with the approval 
of the committee. 

Julius Henry Cohen, of New York : 

Mr. Brown suggests that it is unnecessary for me to say any- 
thing, because it is going to be passed anyway, but I would like to 
suggest that this is a further evolution of the restriction of the 
practice of law by laymen. The Treasury Department recently 
put in effect regulations as a result of action taken by the 
Conference of Bar Association Delegates, which regulates the 
conduct of laymen before the Treasury Department, so as to 
prevent soliciting and advertising for business, and this action 
with reference to the* Patent Office is in the same direction. It 
is important for us to connect these movements in our own 
minds, so that we may understand the tendency. 

Charles Henry Butler, of District of Columbia: 
The Committee on Internal Revenue, of which I happen to 
be the Chairman, will make a report tomorrow, and has con- 
sidered this question of the relation' of attorneys practicing in 
the Treasury Department, and their obligations to the depart- 
ment, under the regulations which Mr. Cohen says have been 
already promulgated, and the rights of attorneys thereunder, 
which are matters that that committee is already considering, and 
it seems to me, inasmuch as the Treasury Department has issued 
regulations, and is enforcing them, that it might be well to sep- 
arate this motion, and to keep it separately in the Committee 
on Patents, and the Committee on Internal Revenue, so far as 
it does not entrench upon the duties of the Committee on Un- 
lawful Practice. ^ 

Now, in regard to the Treasury Department, I say that the 
Commissioner there has acted in a very broad manner, and has 
formulated and promulgated regulations which are very far 
reaching, and which deal with this question of advertising 
cards and solicitation. And what we are more anxious to do 
than anything else at the present time, is to see that those 



48 AMEBIOAN BAH ASSOCIATION. 

attorneys at law who are admitted to practice in the Treasury 
Department^ while they have to assume all these obligations, 
and are under all the pains an.d penalties contained in those 
regulations, that they shall have some of the rights of attorneys 
also. In that respect our committee has had a number of 
sessions with the Commissioner, the Secretary of the Treasury 
and the assistants of the Secretary on this very subject, so this 
matter is now being covered, and has already been covered in 
one respect, by the committee of which Mr. Cohen speaks, and 
has been covered by this other committee. 

Bome G. Brown, of Minnesota: 

May I suggest that this is a resolution only giving authority 
to a committee to investigate and report. If they find that they 
need authority beyond the scope which they are given, on 
account of meeting with other conditions, then they can be given 
that authority. It seems to me the resolution ought to stand 
the way it is. 

John B. Corliss, of Michigan : 

It seems to me that this subject is already being covered by 
two of our standing committees, the one on patents, and the 
other on internal revenue, and that another additional com- 
mittee is unnecessary. The subject-matter belongs to those two 
committees, and the recommendation, it seems to me, should be 
referred to them for action. It is unnecessary to multiply the 
number of committees when you have standing committees upon 
the subject-matter under discussion. 

The Chairman: 

Is there any further debate upon the question ? 

Mr. Howe: 

I might say^that the reason that this question is raised by 
the Committee on Professional Ethics and Grievances is because 
of the large number of complaints received by the committee 
throughout the country during the past year. Those complaints 
were against men who were using letterheads, designating them- 
selves as patent attorneys or income tax attorneys, and your 
committee was obliged, in almost every case, to respond to the 



REPORTS OF COMMITTBES. 49 

person making the complaint, that we could not take any action 
on the matter, because the person complained of was not an 
attomey-at-law. Hence, we undertook the investigation of the 
question, and made this recommendation. 

A. C. Paul, of Minnesota: 

The Patent Section, I am sure, does not want this matter 
referred to it. The complaints which Colonel Howe referred to 
were submitted to the Patent Section. We think that the 
Committee on Ethics and Grievances can handle this matter 
much better than the Patent Section, and we hope that it will 
remain there. 

Barnett E. Marks, of Arizona : 

I should like to see the motion or the amendment broadened 
just a little bit to include the words, " land attorney." Coming 
from a public land state, as I do, we are confronted with that 
evil, in addition to the others already mentioned. If the 
amendment could be broadened, so as to apply to the Com- 
missioner of the Land Department as well, so that he might 
also promulgate regulations touching the practice by these lay- 
men, as land attorneys, who so advertise themselves, I think 
it would be a good thing. 

The Chairman: 

You have heard the various suggestions made by Mr. Butler, 
Mr. Oorfes, and Mr. Marks, and the. remarks of the Chair- 
man of the committee which is involved. Are you now ready 
for the question? The question is upon the adoption of the 
resolution offered by the Committee on Ethics and Grievances, 
as amended by Mr. Paul, the amendment being accepted by 
the committee. All those in favor will please say, " Aye." 
Opposed, " No." The resolution, as amended, is adopted. 

Mr. Howe : 

Mr. Chairman, during the year there was appointed a sub- 
committee of the Executive Committee, to prepare a revision 
of the By-Laws pertaining to the duty of the Committee on 
Professional Ethics and Grievances. That sub-committee was 
composed of Judge McClellan of Alabama, Mr. Richards of 



50 AMERIOAN BAR ASSOCIATION. 

Chicago^ and myself. The sub-committee prepared a revision of 
the By-Laws, which was later referred to the committee, and the 
committee revised it in some slight particulars. It has been 
published, and the committee now recommends the adoption of 
an amendment to By-Law VII by the substitution for the last 
paragraph thereof, of the following: 

1. The Committee on Professional Ethics and Grievances shall aasiflt 
the state and local bar associations in all matters co'nceming their 
activities, in respect to the ethics of the profession, collect and com- 
municate to the Association information concerning such activities, and 
from time to time make recommendations on the subject to the Asso- 
ciation. 

2. Be authorized in its discretion to express its opinion concerning 
proper professional conduct, and, particularly concerning the applica- 
tion of the tenets of ethics thereto, when consulted by officers or com- 
mittees of state or local bar associations. Such expression of opinion 
flihali only be made after consideration thereof at a meetixig of the com- 
mittee, and approval by at least a majority of the committee. 

3. Be authorized to hear, in meetings of the committee, on its own 
motion, or upon a complaint preferred, charges of professional miscon- 
duct against any member of the Association. As the result of such 
hearing, it may recommend to the executive committee, the forfeiture 
of the right of membership by any such member. All such recommenda- 
tions shall be accompanied by a transcript of the evidence, and shall 
only be made after the accused member has been given notice of the 
nature of the complaint, cmd after reasonable opportunity has been 
accorded him or her to submit evidence cmd argument in defense. 

4. Forfeiture of the membership of any member as hereinbefore pro- 
vided, shall become effective when approved by a majority of all of the 
members of the executive committee, and all interest in the property 
of the Association of the person whose membership is so forfeited shall 
ipso facto vest in the Association. The membership in the Association, 
and all interests in the property of the Association of a member shall 
ipso facto cease upon his disbarment, or a final judgment of conviction 
of a felony. 

5. Whenever the specific charges of unprofessional conduct shall be 
made against any member of the Bar, whether or not a member of this 
Association, and the chairman of the Committee on Professional Ethics 
and Grievances is of the opinion that the case is such as requires in- 
vestigation, or prosecution in the courts, the same shall be referred 
by the chairman to the appropriate state or local bar association where 
such attorney resides, and it shall be the duty of the Chairman to co- 
operate with the local Vice-President of this Association for the state 
where such attorney resides, to urge the appropriate officers or com- 
mittees of the state or local bar association to institute inquiries into the 
merits of the complaint, and to take such action thereon as may be 
appropriate, with the view to the vindication of lawyers unjustly accused, 
and the discipline, by the appropriate tribunal, of lawyers guilty of 
unprofessional conduct. 

6. The committee, with the approval of the executive committee, shall 
formulate rules not inconsistent with this by-law, to give effect to the 
foregoing provisions, which rules shall be published ii^ the aPQual 
reports of the Association. 



BBP0RT8 OF COMMITTEES. 61 

I move the adoption of the amendment. 

The motion was seconded and carried. 
(See Report, page 285,) 

The Chairman : 

The President of the Association has an interesting telegram, 
and is going to resume the Chair. 

The President: 

I am very grateful, indeed, Mr. Terry, for your guidance in 
presiding this afternoon when I was unable to be present. I have 
received, since the adjournment this noon, a most interesting 
telegram, which is additional evidence of the widespread feeling 
in this country concerning the subject-matter which was last 
acted upon at the morning session. This telegram is from the 
Attomey-Gteneral of the United States, and I will read it. It is 
addressed to me as President of the Bar Association, and sent 
from Washington this morning. 

Washinoton, D. C, August 10, 1922. 
C. A. Severance, Esq., President, American Bar Association, San Fran- 
CISCO, CaL 

Representatives of the Bar exercise a great influence in ehaping public 
opinion, and I trust consideration and action will be given to the follow- 
ing question which I consider a great national interest. 

The preservation of life, hberty and property requires that the Ameri- 
can people be retaught the fundamental principles of government 
as established by the fathers. When there is a neglect of duty or lack of 
courage on the part of American citizens which leads to failure to adhere 
to and to teach the doctrines of sound government, the perpetuity of 
our institutions is menaced and the sacred rights of those who live 
now and who will live after us are endangered. Too many people in this 
coimtry have been listening to the teachings of foreign doctrines by 
imsound advocates who have left countries which their doctrines have 
destroyed 

I urge that steps be taken before you adjourn to the end that in every 
state, county and municipality, organizations be perfected to teach the 
principles of and the necessity for sound government. Teachers and 
preachers, both men and women, will follow up the work if you lead. A 
movement of this character is as essential in time of peace as in time of 
war and is needed now as it never was before. I believe that the great 
majority of the press will aid and that that portion of the press which 
caters to and preaches and advocates unsound doctrines will be disre- 
garded by the American people who place citizenship and sound govern- 
ment above self-constituted authority. 

Harrt M. Daughbrty, 

Attorney General of the United States^ 



52 AMERICAN BAB ABSOOIATION. 

The President: 

Unless there is objection, I will take the liberty of sending a 
telegram to the Attorney-General, in response to this message, 
saying to him that the very action he proposes was taken this 
morning by unanimous vote of the Association. 

Committee on Commerce, Trade and Commercial Law : 

W. H. H. Piatt, of Missouri : 

This committee's report reaches some 34 pages in printed form, 
and has been handed out for distribution. It deals with matters 
that have been before the committee for some three years. In 
it is found three acts which the committee has drafted with the 
assistance of a special draughtsman. Professor Williston, of Har- 
vard University, notably the National Sales Act, an act for 
arbitration, — ^a national arbitration act, and an act authorizing 
the making of treaties authorizing arbitration, and also an act 
covering uniform state arbitration, which was drawn by the com- 
mittee under an instruction from a previous session of this organi- 
zation, in connection with the federal act. A request will be 
made upon this organization to have this latter act referred to 
the Commissioners on Uniform Laws for their consideration in 
the future. 

The report is summarized in 13 recommendations, and, as has 
been the practice indulged in, in regard to this committee, by this 
organization in the pai?t, those recommendations have been put in 
the form of recommendations for resolution, and unless there is 
an objection, it will be presented as heretofore, the entire number 
of recommendations presented, and then made as one resolution, 
authorizing all of the recommendations at one time. If there is 
objection to that procedure, then we, of course, will be under the 
necessity, Mr. Chairman, of taking up these 13 recommendations 
separately. 

The President i 

Is there any objection? The Chair hears none. You may 
proceed. 

W. H. H. Piatt: 

And I may say, if the Chair please, that in the Sales Act, the 
committee discovered, since the printing of the report, there 



BBP0BT8 OF GOMKITTBBS. 53 

were five necessary words that had been omitted from the conclu- 
sion of Section 55, which the committee has taken the liberty of 
writing in, and will turn in as the corrected report. In para- 
graph 10, the committee has written a recommendation to the 
commissioners which will be rfead here, instead of the printed 
•recommendation covering that resolution, to- wit, the Uniform Act 
on Arbitration for States. Under the instructions, as given by the 
chairman, I move the adoption of the report and the 13 recom- 
mendations made as resolutions on the part of the committee, and 
the acceptance of the report and its approval. 

(The 10th recommendation to which Mr. Piatt referred reads 
as follows : 

That a resolution be adopted referring to the National Conference of 
Commissioners on Uniform State Laws for its consideration, the bill 
herewith submitted by your committee as to a Uniform State Arbitra- 
tion Act. (Appendix C.)) 

The motion was seconded. 

The President : 

You have heard the motion, that the 13 recommendations pro- 
posed by the Committee on Commerce, Trade and Commercial 
Law be approved and adopted. 

William V. Booker, of Indiana: 

May I inquire what subjects are embraced in the matter of 
arbitration^ as proposed by Mr. Piatt's committee? 

W. H. H. Piatt : 

Commercial arbitration was the subject that the Committee 
on Commerce, Trade and Commercial Law first took under con- 
sideration in conformity with the resolution of this body passed 
three years ago. That was referred to the Commission, that 
particular bill that you have inquired about. 

The President : 

Are there any further inquires or remarks? If not, all in 
favor of the motion as made by Mr. Piatt, will say *' Aye ''; op- 
posed ^ No.*' The motion is carried. 

{8e$ Report, page 288,) 



54 AKSRICAK BAB ASSOOIATION. 

Committee on Inteniational Law: 

James Brown Scott, of the District of Columbia: 
The Committee on International Law of the American Bar 
Association has presented its report. It has been printed and 
distributed and hence it is not necessary to take up your time by 
an attempt to read it at this late hour. I would like to say that 
the method of preparing the report has been somewhat different 
this year from the times past. The committee has remembered 
that the American Ba.r Association is a body composed of lawyers, 
and, therefore, that the international events to be discussed 
would better be those of a legal nature, and that the international 
events or the international agreements should be those to which 
the United States was a party. Therefore, the report consists of 
four parts ; a discussion of the International Court of Justice, and 
the last steps taken to complete it; second, a discussion of the 
treaties which have recently been concluded between the United 
States and Germany, putting an end to the state of war between 
those two countries; in the next place, a consideration of the Four 
Power Treaty, and the procedure and results of the Washington 
Conference on the Limitation of Armaments; and, lastly a mere 
statement of the meeting of delegates of Peru and Chile, in the 
City of Washington, under an invitation of the President, in order 
that, by a free discussion on neutral soil, the long-standing diflB- 
culty between those two coimtries respecting the possession of a 
strip of territory might be settled. The committee, however, felt 
that in addition to a report of an expository nature, it might make 
one recommendation, and that recommendation is of a very gen- 
eral nature, namely, the expression of a hope that some way might 
be found by which the government of the United States might 
participate in the proceedings and in the benefits of the Inter- 
national Court of Justice which has recently been established, 
and which is now in session in The Hague. 

Permit me to recall the fact that an honored President of this 
Association, a past President of this Association, when Secre- 
tary of State of the United States, Mr. Elihu Boot, instructed 
the American delegation to the second Hague Peace Conference 
to propose a permanent court of international justice, based upon 
the nature and proceedings of the Supreme Court of the United 



BBP0BT8 OF 00HHITTSB8. 56 

States. A project to that effect was proposed, and it was unani- 
mously approved, the difficulty, at that time, being the method of 
selecting the judges. Through the kindly intervention of the 
same gentleman who proposed the formation of such a tribunal, 
Mr. Elihu Root, meeting with the committee of jurists at The 
Hague in 1920, a method was selected and was devised of the 
appointment of the judges which met with the unanimous ap- 
proval of the nations, with the result that the project of 1907 
was completed by appropriate articles relating to the appointment 
of the judges, and that august tribunal has been in session at 
The Hague, the first true international tribunal. It met on the 
15th day of June of the present year. 

I will ask that the resolution which I have spoken of and ven- 
tured to present on behalf of the committee be submitted to and 
adopted by the Association in the hope that a way be found by 
which the government of the United States may participate in 
the proceedings and the benefits of the International Court of 
Justice. 

The President : 

The Secretary will read this resolution of Dr. Scott's that is 
presented on behalf of the committee. 

The Secretary (reading) : 

The American Bar Association, at its 45th annual meeting, held in the 
City of San Francisco, on the 10th day of August, 1922, expresses the 
hope that a way may be found by which the government of the United 
States may avail itself of the permanent Court of International Justice. 

The President: 

I imderstand you move this resolution ? 

Mr. Scott : 

I so move, Mr. President. 

The motion was seconded and carried. 

C. N. Goodwin, of Illinois: 

I rise to make a suggestion in the interest, if not of peace, 
of a good-feeling on the part of the American Bar Association 
and all its members, concerning the specific proposal by Mr. 
Scott I think we are all agreeid concerning our commenda- 
tion for the industry of this committee, and the very admir- 



56 AMERICAN BAB ASSOCIATION. 

able manner in which it has presented its report. I think 
we are all as one on that. But there is^ in this report^ a statement 
that is highly objectionable to many delegates who are here, and 
my request is going to be on the part of Mr. Scott to withdraw 
an immaterial part of his report, and prevent the necessity of a 
motion on the floor of this meeting. 

On page 53 of the report, the committee — I mention the 
fact that four of the five members of the committee have signed 
the report — ^refers to the presentation of the Treaties of Ver- 
sailles to the Senate of the United States, and the controversy 
which arose in the Senate, in regard to those treaties. It con- 
tinues: ''A situation had thus arisen, foreseen in the course 
of the Federal Convention by Mr. Madison, to which is due, in 
large measure, the placing of government under the present 
constitution of ^ the states in their united capacity,' to use his 
own happy phrase. The President, he said, would necessarily 
derive so much power and importance from a state of war that 
he might be tempted, if authorized, to impede a treaty of peace. 
Unwillingness of the late President to accept reservations to 
the Treaty of Versailles prevented peace by means of the treaty, 
for a treaty, as such, cannot be made by Congress. A treaty is 
an act to which two or more nations are parties. It is a bi-lateral 
act." And then continues some discussion of the nature of a 
treaty, and a quotation from Chief Justice Marshall which con- 
tinues over on page 54. 

The question of whether President Wilson was unwilling to 
accept reasonable reservations in the Treaty of Versailles, and 
whether his action, whatever it was, was the cause of the rejec- 
tion of that treaty, is a controversial political question on which 
this assembly is divided. It has no place here. We are met for 
the improvement of the law, we are met here to bring about a more 
efficient and satisfactory administration of justice, we are met to 
produce better conditions in the Bar, and we cannot bring about 
those results, if controversial questions, political questions on 
which we are divided, are brought into this assembly, and there- 
fore I ask, on behalf of those who feel as I do on this matter, Mr. 
Scott, that you withdraw the portion of the report beginning on 
page 53, with the words: "A situation had this arisen,'* and 
continuing on through the first two lines on page 54. 



RSPOBTS OF 00MMITTBB6. 57 

The Prefiident: 

Dr. Scott, you have heard the request made afi to the elimina- 
tion of certain recitals in the report. 

Mr. Scott: 

Mr. Chairman, I would like to relieve his mind. There is no 
intention of injecting any controversy, there is no intention of 
producing a controversy, and it gives me very great pleasure in- 
deed to accede to the request of the gentleman, because I think 
we are here to unite, not to divide, and that anything that would 
seem to be offensive to any member should be gladly eliminated 
upon a request, without discussion. 

The President: 

Gentlemen, the report now stands before you deleted to the 
extent stated by Judge Goodwin, namely, to strike out from the 
middle of page 63, the part beginning, " A situation had thus 
arisen,^' down to the end of the quotation from the Antelope case, 
on page 54. That may be considered as eliminated. Are there 
any other suggestions as to the report, aside from those made by 
Judge Goodwin? 

Judge Goodwin : 

I move the adoption of the report as amended. 

The motion was seconded and carried. 

Mr. Scott: 

I have a resolution which I would like to present, as the com- 
plement of the preceding resolution, and I hope it will be found to 
be of a non-controversial character. 

The American Bar Association, at its 45th annual meeting, held in 
the City of San Francisco, on August 10, 1922, expresses the hope that the 
recommendation of the committee of jurists assembled at The Hague, 
in 1920, proposed by the Hon. Elihu Root, first, that a new conference 
of the nations in continuation of the first two conferences at The Hague 
be held as soon as practicable, for the following purposes: 1. To renstate 
the establii^ed rules of international law, especially in the first instance 
in the fields affected by the events of the recent war. 2. To formulate 
and agree upon the amendments and additions, if any, to the rules of 
international law shown to be necessary or useful by the events of the 
war, and the changes in the conditions of international life and inter- 
course which have followed the war. 3. To endeavor to reconcile 
diver^nt views and secure general agreement upon the rules which have 
been m dispute heretofore. 4. To consider the subjects not now ade- 



58 AMERICAN BAR ASSOCIATION. 

quately reflated by international law, but as to which the interests 
of international justice require that rules of law shall be declared and 
accepted. To render this recommendation effectivei the American Bar 
Association instructs its Committee on International Law to present 
a report to the next meeting of the Association concerning, in general, 
each of said recommendations. 

The motion was seconded. 

The President: 

It has been moved and seconded^ that the resolution offered by 
Mr. Scott be adopted. I understand that it is a recommendation 
unanimously adopted by the jurists at The Hague^ upon the sug- 
gestion of Mr. Boot. 

Mr. Scott: 

Yes, proposed by Mr. Root. 

Chief Justice Taft: 

Is a motion to amend the resolution in order? 

The President : 
Yes. 

Chief Justice Taft : 

The first resolution that was passed, as I understand it^ inti- 
mated a desire on the part of the committee, and which desire 
was approved by the Association, that some means should be 
found by which the United States could have the benefit of 
association in the International Court now sitting at The Hague. 

Now, this resolution is an instruction to the Committee on 
International Law, upon certain subjects, instructions drafted by 
Mr. Boot, and I have no doubt the Association would gladly adopt 
those resolutions, or rather, the instruction to the committee, 
but it seems to me it might be well to add that the committee be 
also instructed to report the machinery that it has in mind in 
the first general resolution which we adopted, namely, to suggest 
the changes in the statute organizing the present court, which it 
seems to the committee might make it possible for the United 
States to become a party to that court, without further obligation. 
In other words, I think the committee ought to carry it further 
than a mere general expression of hope. I think they ought to 
formulate something so as to help us in respect to reaching that 
which they express a hope may come. 



BSP0BT8 Oir OOltliCITTHBd. 69 

And I move^ therefore^ that that be adopted as part of this 
resolution, namely, an instruction to the committee to formulate 
such amendments or changes in the statute which now consti- 
tutes the court which, in the judgment of the committee, might 
jnake it possible for the United States to accept it. 

The President: 

Is the amendment seconded? 

The amendment was seconded and carried. 

The President: 

The question now is upon the resolution offered by Mr. Scott, 
as amended by the Chief Justice. Are there any further re- 
marks ? If not, all in favor will say " Aye.^^ Opposed, " No.^' 
The resolution is unanimously adopted. 
(See Report, page 3^3.) 

Committee on Insurance Law: 

James E. Kerr, of Oregon : 

I have been requested by Mr. Vorys, to present his report in 
his absence. The report is here in the form of a very succint 
typewritten statement, which can scarcely be summarized in 
any shorter space than it is written. 

On behalf of the Committee on Insurance Law, I move that 
the Committee be instructed to continue furnishing copies of 
the Code to those interested in such legislation in the several 
states, and that the committee urge upon the Congress the 
enactment of a code for the regulation of insurance in the 
District of Columbia, and I add to that motion that this report 
be received and made a part of this proceeding. 

The motion was seconded and carried. 
(See Report, page 363.) 

Committee on Publicity : 

Mitchell D. FoUansbee, of Illinois : 

Your committee has reported briefly on page 77 of the pam- 
phlet of reports. It has no resolutions to offer, but it takes this 



60 AMBRICAN BAK ASSOCIATION. 

opportunity to thank the yarions news-gathering agencies, such 
as the Associated Press, for their courteous and generous and 
constant cooperation. Publicity, of course, is debarred to the 
individual practitioner, but this is a matter of collective bar- 
gaining, and there is a sanction to the written word. It Las. 
been the theory of us amateurs, that the more times the Ameri- 
can Bar Association could be mentioned with approbation in 
the papers scattered around the country, which the plain and 
other people read, the more sanction would be given to it, and 
more weight would be given to its recommendation. So, while 
the Publicity Committee does not write the speeches that are 
delivered, it digests and sends them out from coast to coast, and 
during the year it sends out matters that may be of interest or 
may be assumed to be news. We tested the results of our efforts 
by subscribing to a press clipping bureau, and so much stuflE 
rolled in that nobody could possibly read it, and so we stopped 
the subscription. I am sure that the next committee will be 
very glad to have, as we have had, any recommendations for 
suggestions that can be made among the members, some of whom 
may be more familiar with publicity than the members of your 
committee have been. 

The Chairman: 

The report, requiring no action, will be received. 
{See Report, page 39 Jf,) 

Committee on Memorials: 

The Secretary read the report of the Committee on Memor- 
ials, and during the reading of the report, the delegates and 
audience remained standing. 

{See Report, page 395.) 

Committee on Jurisprudence and Law Beform: 

Henry W. Taft, of New York : 

The Association will share with the committee the regret that 
the familiar figure of Mr. Wheeler does not appear here for the 
presentation of this report. His health did not permit him to 
make the trip across the continent, nevertheless, he was in a 



BBFOBTS OF COMMITTEES. 61 

condition which enabled him to formulate for the committee 
this report^ and he has asked me to present it. 

I suppose there is a conclusive presumption that all of the 
Yoluminous literature which is distributed by the officers of the 
Association has been assiduously examined by the members of 
the Association^ and therefore, unless there is a request I shall 
not read the text of this report, but endeavor to curtail its 
presentation by stating the substance of it, except certain im- 
portant parts, which perhaps would be better presented as it 
was agreed upon by the committee. 

The first subject which haa been dealt with by the committee, 
is the subject of declaratory judgments. That subject has 
received the attention of the committee during several years, 
and has finally resulted in the recommendation that Congress 
enact a provision that the courts be empowered to render de- 
claratory judgments. There has been considerable literature 
upon that subject, and some of the states, including my own 
state, have adopted provisions of the statute authorizing de- 
claratory judgments. In England, they are authorized to render 
such judgments, and I am informed, so far as statistics are ob- 
tainable, that something like 50^ of the judgments in the courts 
of England are rendered in cases in which a declaratory judg- 
ment is rendered by the court. I presented this matter to the 
Judiciary Committees of the two Houses of Congress, and there 
ensued a very full discussion of the subject. The committee is 
firmly of the opinion that our system of jurisprudence and pro- 
cedure would be advanced by a provision authorizing the courts 
to make declaratory judgments. We have appended to our 
report a number of cases in which such judgments would be 
useful. Of course, I cannot detain you today by attempting to 
state cases in which they would serve in the administration of 
justice. It is, perhaps, sufficient to mention one, that is to 
say, when a contract which has yet to be performed, and in 
respect of which no liability has arisen, and where both the 
parties are desirous of being guided in their conduct in relation 
to the contract, and a real controversy exists, they may appeal 
to the court, and have the contract construed for their guid- 
ance in the future. There are many other instances in which 
the judgment would be useful. We have, accordingly, recom- 



62 AMEBICAK BAR ASSOOIATION. 

mended that Congress enact a provision authorizing declaratory 
judgments, and we have formulated a bill after a number of 
efforts in an endeavor to avoid pitfalls, and have succeeded in 
drawing a very brief bill, which has been presented to the com- 
mittees of both Houses of Congress. 

The member of my family who occupies an official position, 
this morning stated one form of the simplification of practice, 
namely, the simplification of all proceedings for appeal in the 
federal courts, excepting in the case of writs of certiorari. That 
was one of the subjects that the Committee on Jurisprudence 
and Law Reform recommended to Congress, and appears to 
meet with a pretty universal approbation, and that forms one 
chapter of the report of the committee. The most troublesome 
question that we have had to deal with is the removal of cases 
to the federal courts. The whole srabject of removal of causes 
is in a hopeless state of confusion, owing to the differing views 
of the courts in the several circuits concerning that provision 
of the judicial code relating to the proper place for the com- 
mencement of a suit in the federal court. There is a hopeless 
inconsistency and conflict in the decisions in the several circuits. 
Our friend, Mr. Boston, has been of great assistance to us in 
considering this subject. I think that his attention to it has 
been largely stimulated by painful experience in his professional 
practice. In any case, he has been able to throw much light on 
the general subject. The Supreme Court has said that the 
condition is such in respect to the provisions of the law relating 
to removal of causes, that there is no remedy excepting an 
amendment of the law, and we have endeavored to formulate, 
and we have submitted to Congress, a provision which probably 
will remove all difficulties in the future. I think that will 
pass both Houses from the expressions which were made when I 
appeared before them, indicating that they are willing and 
anxious to remove the doubt upon that subject. It required an 
amendment of two sections and the addition of one section to 
the judicial code. 

We attempted to provide for procedure in the federal courts 
for the protection of the interests of aliens. We did not succeed 
in getting the bill which we recommended approved by the 
committees of Congress, but through the efforts of Mr. Moores, 



BBP0BT8 OF OOKKITTBB& 63 

who was a member of our committee^ and a member of the Hotise 
of Bepresentatives from Indiana, we did succeed in getting 
inserted into the anti-Iynching bill, a sort of a rider, substan- 
tially covering the subject-matter. As to the constitutionality 
of the main portion of the anti-lynching bill, one of our mem- 
bers, our respected representative from Colorado, has entered a 
protest, expressing his doubt as to the constitutionality of the 
provisions of that law, but even though the other provisions be 
declared to be xmconstitutional, it seems to us quite clear that 
the provision relating to the power of the court to deal with 
rights of aliens may be sustained, even though the rest of the 
act be declared to be unconstitutional. 

Senator Nelson has endeavored to procure the passage of a law 
permitting an accused person to plead guilty at any time. He 
thinks, and his experience in courts in Minnesota has lead to the 
conclusion, that a plea of that kind will tend to facilitate the trial 
of cnminal cases, and at his request, and after a consideration of 
the subject, the committee decided to recommend the act which 
Senator Nelson has introduced to accomplish that result. 

Our attention was called to the subject of f^es and costs in 
the federal courts. You all will recall that Senator Norris de- 
livered an elaborate speech upon that subject, especially charg- 
ing that the expenses and costs in the federal courts in many 
cases exceeded those in the state court. Investigation by the 
committee has shown that, to a certain extent, those assertions 
were true. We have not recommended anything specific. The 
subject is very broad, but it is a subject which ought to receive 
very careful consideration. The committee ten years ago or 
more several times recommended that the present system for 
payment of the bills of stenographers be abolished, and that that 
whole subject be put in the discretion of the court. That recom- 
mendation was made to Congress, but upon being presented to 
the committees of Congress there was the bitter opposition of 
the Stenographers' Union, and it resulted in the defeat of the 
measure. They preferred that the parties should be made to pay 
their expenses without any supervision by the court. The whole 
subject of the expense in the federal courts ought to be taken 
up and disposed of. 

3 



64 AMERICAN BAB ASSOCIATION. 

Ten years ago a bill was introduced, which it was hoped 
might diminish the cost of legal proceedings in the federal 
courts, but on account of some ambiguities in the bill, we are 
advised by the Attorney-General that it has not accomplished 
the desired object, and the whole subject needs to be taken up 
and formulated. The committee will continue its examination 
with a view to that result. ' 

The next subject taken up by the committee is that of injunc- 
tions. In view of the importance of that subject, I shall adhere 
to the expressions of the committee, which appear on page 82 
of the report. The subject was brought up by the introduction, 
by Mr. Backarack of New Jersey, of a bill which provided that 
no district or circuit court, or the judge thereof, shall have 
jurisdiction to entertain any bill of complaint, suspending or 
restraining the enforcement, operation or execution of any order 
made by any administrative board or commission in any state, 
acting under and in pursuance to the statutes of such state, 
where such order was made after a hearing upon notice, nor to 
entertain jurisdiction upon any bill of complaint, to suspend 
or restrain the enforcement, operation or execution of the 
statute under which such order was made in any case where, 
under the statute of the state, provision is made for a judicial 
review of such order upon the law and the facts. There is a 
provision in the bill that it shall not apply to matters affecting 
interstate commerce. 

This whole subject was dealt with by the committee as far 
back as 1913, and subsequently in 1914, and in these reports 
the committee then undertook to vindicate the existing law, 
that is, permitting the courts to issue such injunctions and to 
approve the practice of the courts in respect thereto. The com- 
mittee has quoted from its report of 1913, and the subject was 
so briefly but completely covered by that report that I am 
going to detain the Association by reading an extract from that 
report. 

The complaint against injunctions is really the direct reverse of the 
complaint TK^ich is also common that legal procedure is technical and 
dilatory. The procedure in injunction cases is neither. Either party is 
at liberty to put in any evidence it chooses, without regard to the 
technical rules which prevail in the ordinary trial of causes, and the 
hearing is speedy. The whole arsenal of technical points by which cases 
are often procrastinated is of no avail here. The true purpose of an 



RSP0BT8 OF 00KKITTBB8. 66 

injunction is to prevent irreparable injury. This may mean either an 
injury that, in a strict sense of the word, cannot in any way be made 

Sood, or an injury, the consequences of which shall be such that the 
amage consequent upon it cannot be accurately adjusted, and so 
cannot be compensated by any money payment. In theoi]y injunction is 
the defense of the weak against the strong. The conditions of society 
are such that some men have power far greater than others. This power 
may come from their great wealth; it may come from their organisa- 
tion afid discipline. Without the right of injunction, it would be per- 
fectly possible for such persons to commit wrongs against their fellow- 
citizens, and then, having obtained the object they desire, sit down and 
calmly wait the result of an action for damages. In defendhig such an 
action all the delays which are possible under systems of jurisprudence 
would be availed of, every technical objection would be taken, every 
possible appeal would be resorted to. In many cases the plaintiff would 
not have the pecuniary means to prosecute the suit to a conclusion. In 
many others the burden of contesting it would be so great that he would 
relinquish the contest, and the aggressor would remain in possession of 
the field. 

Under our present ^stem, when such an injury is threatened, the 
party who has reason to apprehend it, may apply to the court, and 
obtain an order immediately forbidding the aggressor to commit the 
wrong, and requiring him to show cause why he should not be perma- 
nently forbidden to commit it during the pendency of the suit. The 
hearing in such case is prompt. The evidence, it is true, is by affidavit 
and not subject to cross-examination, but in point of fact, the actual 
facts of the case are generally presented to the court. Both parties are 
heard by coimsel, and the •court promptly passes upon their rights. In 
the case of doubt, the injunction is retused. But if the party has made 
out a clear case, it is granted. The aggressor still has the right to a full 
trial in ordinary course, with the right to cross-examination of the 
adversary witnesses. But in nine cases out of ten he does not avail of 
this right. The injunction has defeated his nefarious attempt to injure 
or destroy some one who, for some reason, he wishes to assail, and he 
gives up the contest. 

We cannot close this part of our report better than by quoting 

from the language of Mr. Justice Brewer^ in an address delivered 

in Brooklyn, November 23rd, 1909. Justice Brewer said : 

When the choice is between the redress or prevention of injury by 
force, or by whatsoever process, the law is well pleased if the individual 
will consent to waive his right to the use of force, and await its action. 
Government by injunction has been an object of easy denunciation. 
So far from restraining its power, there never was a time when its 
restrictive and vigorous exercise was worth more to the nation and for 
the best interests of all. As population becomes more dense, as business 
interests multiply, and crowd each other, the restraining power of the 
court of equity is of far greater importance than the punishini; power 
oi the criminal law. The best scientific thought of the day is along 
the lines of prevention, rather than those of cure. We aim to stay the 
spread of ^idemics rather than to permit them to run their course, and 
attend solely to the work of curins the sick. And shall it be said of the 
law, which claims to be the perfection of reason, and to express the 
highest thoughts of the day, that it no longer attempts to prevent the 
wrong, but limits its action to the matter of punishment? To take 
away the equitable power of restraining wrong is a step backward, to- 
ward barbarism, rather than a step forward toward higher civilization. 



66 AMBBICAN BAR ASSOOIATION. 

Courts make mistakes in flranting injunctions. So th^ do in other 
orders and decrees. Shall the judicial power be taken away because of 
their occasional mistakes? The argument would lead to the total 
aboUtion of the judicial fimction. 

The action of the committee in relation to injunction a dozen 
years ago was approved by this Association. There have been 
hearings upon this bill before the committees of Congress. Mr. 
Harron of our committee has appeared in behalf of the Associa- 
tion, and has pointed out some objections to the bill introduced 
by Mr. Backarack^ which would limit the power of courts in 
relation to injunction, and this committee has unanimously voted 
to disapprove the bill. Information as to this vote has been 
presented to the Judiciary Committee, which has the matter 
under consideration. 

In connection with the subject of injunction, the Section 
dealing with the Law of Public Utilities, during a session of this 
Association, has adopted a series of resolutions, and the members 
of that committee have handed me these resolutions, requesting 
that I read them in connection with the report of the Conmiittee 
on Jurisprudence and Law Reform. They relate to a special 
phase of the subject, but they are germane to the general subject, 
relating only to Public Utilities, nevertheless, they have a con- 
nection which is obvious. 

Resolved, That the Section on Public Utility Law of the American 
Bar Association hereby expresses the emphatic opposition of its mem- 
bership to the Backarack bill now pending in Congress, and to any 
similar legislation, designed to limit or destroy, as to any particulso* 
class of litigants or rights, the present equitable powers of the federal 
courts, to enforce the guaranties of the federal constitution for the 
protection of person andf property; 

Resolved, further, That the Section ask its Chairman, in its report to 
the Association, to present, at least in outline, the considerations which 
have been developed in the discussions before the Section, as demon- 
strating the extreme unwisdom of any such radical curtailment of the 
federal judicial power; 

Resolved, further, Thekt the Chairman of this Section of the sub-com- 
mittee, be enabled, at to-day's session, or authorized in behalf of the 
AaBociation, to take such further steps as in their judgment may be 
advisable to bring about the endorsement bv the Association of the 
actions of its Committee on Jurisprudence and Law Reform, in actively 
opposing the Backarack Bill, at the present sessfon of Con^press, and 
also to support, before the Association, any suitable resolution which 
may be offered in condemnation of that or similar legislation. 

The conamittee has dealt with the subject of reducing the 
business of the Supreme Court. The heading of this Section 
report is, "Increasing the number of judges in the Supreme 



JUEPOBTS OF OOMMITTBES. 67 

Court/' I think that is an error. The committee has not recom- 
mended an increase of the judges of the Supreme Court. On the 
contrary^ its consideration of the subject has led it to make recom- 
mendations in line with those which were explained by the Chief 
Justice this mornings in his address. 

There has been considerable complaint concerning the jurisdic- 
tion of the federal courts in actions for personal injury and other 
torts. Advantage has been taken of various circumstances to 
obtain jurisdiction under the present provisions of the law in 
courts which are unsuitable for the trial of that class of cases. 
It has been represented to us that the defendants are frequently 
embarrassed in having to try their cases in foreign jurisdictions, 
in many cases at a great distance from places where the witnesses 
may be obtained, and there is no present provision of the law by 
which the venue may be changed into another circuit. Further- 
more, it has had the result of imposing upon foreign jurisdictions 
the expense of trying cases which have no business to be there, 
and which have no natural connection with the district. As the 
result of that the committee has recommended that a bill be 
passed by Congress which would make the jurisdiction of the 
court dependent upon the residence of the parties and upon the 
happening of the events which led to the litigation. Substanti- 
ally, gentlemen, that is the report which has been made by your 
committee, and we recommend the adoption of these brief reso- 
lutions : 

Resolved, That this Association approve the action of the Committee 
on Jurisprudence and Law Reform, detailed in the foregoing report; 

Resolved, That this Association instructs the said committee to con- 
tinue to promote the passage of the bills mentioned in such report 
which have the approval of said committee. 

I offer those resolutions for adoption. 

The President: 

Is it desired that they be separated, or is it the desire of the 
Association that they be considered together? If there are no 
objections, the resolutions will be considered together. 

F. M. Oliver, of Georgia: 

I have listened attentively to the report^ and I feel that I did 
not catch the substance of the report relative to costs of appeal 
in the federal courts. Personally, I would like to know if the 



68 AMEBICAN BAR ASSOCIATION. 

committee^ in its printed report^ has suggested a means by which 
those costs may be reduced. 

H. W. Taf t : 

There is a paragraph which deals with that particular subject. 
It is inconclusive, so far as the recommendation of any remedy 
is concerned, and merely states that the committee is clearly of 
the opinion that the subject-matter does require attention, as 
Senator Norris, in his speech said. The committee, however, 
reports a bill to diminish the expenses of proceedings on appeal 
and writs of error that was proposed by the committee, and recom- 
mended by the Association in 1909, and again in 1910. This 
bill was amended in Congress and that is the difficulty, because, 
in its amended form, it was passed, and the Attorney-General, in 
his last report, at page 4, has stated that the language of that 
act, as it was amended by Congress, was ambiguous, and has 
resulted in much confusion in the matter of fees and other 
charges. The Attorney-General informed the committee that 
Congress has attempted no action upon his recommendations for 
the amendment of this statute. Your committee is engaged in 
examining the subject, and hopes to be able to aid in eliminating 
the ambiguity complained of. 

Andrew A. Bruce, of Minnesota : 

I wish to address myself briefly to the subject of the injunction. 
I was a member of the Committee on American Ideals, and was 
almost tempted to waste the time of the audience this morning, 
after the presentation of the report, but it seemed absolutely un- 
necessary on account of the unanimity of sentiment that was 
expressed. But it does seem to me that at that time the question 
might have been considered perhaps a little more, and that it 
might have been considered in connection with this very question 
of the injunction. It seemed to me that the report this morning 
was simply a report which advocated the propaganda of American- 
ism, as opposed to the propaganda of the soap-box, of the parlor 
socialist, and of the misguided idealist, and that it is about time 
in America that we faced the issues and that we realized that we 
are coming pretty nearly to the jumping oflf place of government. 
I have had occasion myself, when I happened to be on the Bench, 
and when a decree was issued by the court which was unpopular 



BBP0RT8 OF COMMITTEES. 69 

I 

politically^ to face a man who suggested that the decree would 
not he obeyed, because the other side had twenty or thirty thou- 
sand majority. And when we come to the injunction, we realize 
every time that it is a question of whether the rank and file of 
the American people will stand back of that injunction. In 
Europe we fought for a government of law among nations, as 
opposed to the government of the temporary majority, or the well- 
organized minority. We asserted the fact that a treaty of inter- 
national law was supreme, even though the minority was organized 
and had the heaviest battalions. The great victory of the World 
War was the demonstration of the fact that the great unorganized 
majority^ the unorganized military of England, with its little 
army of 150,000 men, the great unorganized democracy of 
America, could, as a matter of lafit resort, when forced to the 
issue, organize and overcome the militant and the lawless mi- 
nority. That is the issue in every question. I think we hardly 
realize the seriousness of it. When Judge Anderson issued his 
injunctions recently, in the last coal strike, fortunately, the labor 
men had the common-sense to bow to the decree of the court, 
but what would have happened if they had refused to obey? In 
every case we come to the question of whether the law-abiding 
sense of the community is strong enough to enforce the law. Our 
Supreme Court decides issues between sovereign states, questions 
that in Europe would mean civil war, and yet somebody has 
said that all the Supreme Court has to enforce its decrees with 
is a female stenographer, and a one-legged bailiff. But after 
all, we enforce them, because of the sense of law and order that 
is in the community, the realization that, after all, back of these 
decrees of the court, are the arms, the hands, the bayonets, if 
necessary, of the great, unorganized people. The whole thing is 
a question of a governme*nt of law. Back of a government of law 
must be the unorganized might of the people. In order to have 
the unorganized might of the people, you must have a belief in 
the law, a belief in American institutions, a belief in America 
itself. And this whole question comes right down to the one 
question, whether we in America really believe in American insti- 
tutions, or whether we do not. We have in America fifty million 
foreign bom, or the children of foreign bom. We have in 
America, I believe, almost sixty million of the grandchildren of 



70 AKERIOAK BAB ASSOGIATIOK. 

the foreign bom. I am not sneering at the foreign, I am 
one myself, but I am enough of a foreign-bom man to realize 
how difficult it is for a foreign-born to understand America. 
I had that difficulty myself. Born in the old world, in the 
traditions of the old world, proud of my ancestors, proud of 
the past, how difficidt it was, really to become an American, 
really to visualize the vision of America, really to see what 
America was I That magnificent vision of a nation stretching 
from ocean to ocean, composed of millions of the foreign-bom, 
classes who in Europe would not associate, nations who in Europe, 
through the centuries, have been at war, building together a great 
cosmopolitan civilization, because they have grasped the idea of 
the fatherhood of God and the brotherhood of man, of real liberty, 
and yet grasping the great idea that, after all, even the firma- 
ment is built on order, and even the stars of heaven march in 
time. America! We have got to have faith in America, we 
have got to realize the fact that after all a government of law 
is absolutely necessary to America. And the trouble today, as 
I say, in every injunction, is that one question, what is the senti- 
ment of the people? 

We need propaganda, that is what we need, in order to enforce 
injunctions and the government by law. The trouble in America 
today is that we have left it to the soap-box orator, to the socialist 
and to the idealist, who does not know anything of practical life, 
very often to preach the gospel ; we have left him the whole field. 
We have not spread the gospel ourselves. Thousands of our 
foreign-bom, thousands of our men themselves, have mistaken 
ideas, have the idea that civilization was born yesterday at ten 
o'clock in the morning. Anything that is new appeals to them, 
any change in American institutions appeals to them. We must 
realize, and we must teach America, if we want to get these 
injunctions obeyed, the real conception of America, — that Ameri- 
ca is not a nation, it is a nation of nations; that back of the 
Constitution of America is not the work of a single moment; 
that the courts of America, when they are enforcing the Consti- 
tution, enforcing the established law, are not despots, that they 
are doing their best to be democratic, trying to enforce a consti- 
tution which ifi the work of all of the people, and the safeguard 



REPORTS OP 00MMITTBE8. 71 

of all of the people ; that we are the inheritors of the ages^ and that 
back of the American Constitution^ back of all laws that we haye 
today, back of all of the liberties that we enjoy, back of all that 
magnificent comradeship which makes America, are these strug- 
gles of the ages and of the centuries in every land and in every 
clime from which we have taken our people. That back of it is 
the scaffold and gibbet, back of it are the fires of persecution. 
It seems to me that we want to go firmly on record in regard to 
thi£ injunction, we must express our faith in the administra- 
tion of the law by the courts. I say we need, above all things, to 
spread abroad the propaganda of America. We are facing the 
issue — ^the jumping off place of government — and we must take 
the responsibility. 

Harvey F. Smith, of West Virginia : 

I do not believe we are near the jumping off place. I live in 
the hills of West Virginia where, upon one street car, we may hear 
six to twelve languages, but there is not in this country a place 
large enough for a decent city truck patch where, when the final 
hour comes, people will not rally to the support of the courts, 
whether they be municipal, state or federal. We should not send 
out such messages, we should not tell the newspapers that we 
are near the jumping off place, for this country is the bulwark of 
democratic government. There are, my fellow lawyers, no places 
of substantial danger in this country. These are isolated spots 
where soap-box orators protest, and we, as lawyers, as the greatest 
body of patriots, should not dignify their statements in this con- 
vention in that manner. I protest. We are not near the jumping 
off place. We have gone through a great crisis, but we have 
demonstrated to the world our courage, our decision and the 
permanence of our system of government and the almost universal 
determination of our people to perpetuate and to sustain that 
system. 

H. W. Taft : 

Mr. President, the gentlemen have approached a consideration 
of the general subject and as I understand their argument they 
are both in favor of the adoption of the report of the committee. 



72 AMSRICAN BAR ASSOCIATION. 

The President : 

All in favor of the adoption of the report will say aye, opposed, 
no. The ayes have it, the report is adopted. 
(See Report^ page S66.) 

Section of Public Utility Law : 

Charles R. Brock, of Colorado : 

In view of the action which has just been taken, it is only 
necessary for me to say, on behalf of the Section of Public Utility 
Law, that the program as printed was carried out with the ex- 
ception of an address scheduled to be delivered by the President. 
An interesting report was made by the Secretary, most interesting 
papers were read and those papers were of such interest that the 
Section believes that all of you ought to have the advantage of 
our proceedings, and, accordingly, a resolution was prepared 
requesting the Executive Committee to print the addresses and 
the report of the Secretary in the annual report. 

The President: 

As I understand it, the report requires no action and will bo 
received and filed. 

The Association took a recess until 8 P. M. 



Sixth Session. 

Thursday, August 10, 1922, 8 P. M. 

The President : 

It is a matter of sincere regret to the local committee, and to 
the officials of the Bar Association, that we are unable to have, 
tonight, a larger hall, but it is impossible and the management 
of this hall has been very kind. They have put in several hun- 
dred more seats so that we have an audience now that anywhere, 
except in San Francisco, and for any meeting of the Bar Asso- 
ciation except the one in San Francisco, would be a record- 
breaker. But that is not entirely due to the attractions of the 
Bar Association. We are not in the habit of having the second 
officer of the government present at our meetings. This evening 



REPORTS OF COHMITTBBS. 73 

will be deyoted, first, to the address to which you will listen, 
and, second^ to the report of the Committee on Law Enforce- 
ment. It seemed to the committee in making up the program for 
this meeting that it was peculiarly suitable that, at a time when 
the Association is to consider the subject of law enforcement in 
the face of the crime wave which has been going over this 
country for sometime past, the report of the committee should 
be preceded by an address of the man who announced, as gqod 
American doctrine, that there is no right to strike against the 
public safety by anybody, anywhere, anytime. That language 
is quoted from the message signed by the then Governor of the 
State of Massachusetts, now the Vice-President of the United 
States, whom I have the honor to introduce. 

Calvin Coolidge, Vice-President of the United States, then 
delivered his address. 

(See Address, page 270.) 

Committee on Law Enforcement. 

W. B. Swaney, of Tennessee : 

Our committee has requested Governor Whitman, of New 
York, who has a splendid voice, to read the report so that you 
can thoroughly understand it. This report was not printed in 
time for general distribution. For that reason we ask your 
careful attention to it on account of its great importance. 

The President : 

Ladies and gentlemen, this report will be read by a member 
of this committee whom you all know as a man who enforced the 
law against the gunmen and others in New York City. 

Charles S. Whitman, of New York, read the report of the 
Committee on Law Enforcement. 
{See Report J page Jt2^,) 

Mr. Whitman : 

Mr. President, I submit the report of the committee and move 
its adoption. 

The motion was seconded. 



74 AKERICAN BAB ASSOCIATION. 

Nathan William MacChesney, of Illinois: 

I would like to ask the Chairman of the committee if the 
committee quoted the excerpt from the report of Doctor Adier 
with his approval? 

Mr. Whitman : 

We had Doctor Adler's assistant appear hefore us and the 
information was given us in detail on diagrams by his assistant. 
D6ctor Adler was ill at the time and was not present. 

Mr. MacChesney: 

That particular item of Doctor Adler's report has been dis- 
cussed heretofore, and while I could not determine exactly 
whether the committee report carried an endorsement of it or 
not, I did not think that this Association should endorse that 
statement. Perhaps I came in contact with the quality of the 
intelligence of the average enlisted man more than most men 
came in contact with it. But, these so-called intelligence tests 
often determine the agility of a man without determining his 
intelligence, and to state that an average inmate of the criminal 
institutions of the State of Michigan, or any other state, has the 
same average of intelligence as the average enlisted man of the 
late war is an insult to the American Army and is not true. I 
have seen some of these tests applied. I remember one of these 
tests was applied in my own city where one of the most dis- 
tinguished legal scholars in this country, and a bishop of the 
Episcopal Church, now on the Pacific Coast — both of them took 
the test, and both of them failed on the ten-year old test. I am 
not trying to discredit the test, I am merely saying that any 
general conclusion based on such a test, and currency given to 
such conclusion is unfair, and I hope the committee, by the 
presentation of this very splendid and unusually carefully pre- 
pared report, will not be taken to have endorsed that statement. 

C. S. Whitman: 

I am perfectly willing to answer that. Of course, this involves 
AO moral test. The statements were made before our committee, 
both pro and con, that the average prisoner was mentally defi- 
cient. I have not any hesitancy for myself, from my own 
experience, in stating to you and to this audience that, as far as 



BBP0BT8 OF OOKlflTTKBS. 75 

the mentality and the ability to distinguish between right and 
wrong is concerned, I believe the intelligence of the average 
prisoner before the Bar where I prosecnted in New York City 
is fully np to the average intelligence of this audience tonight. 
I am not speaking of the moral qualities at all. I agree with 
you entirely and, of course, we don't endorse, necessarily, any 
of the testimony that is presented. Doctor Adler made this 
observation, as his representative stated, after nearly a year's 
investigation. It was simply an answer to the statement made 
before onr committee by another distinguished psychologist, 
that every criminal was mentally deficient. Both statements 
were made, ladies and gentlemen, and it is within the province 
of the American Bar Association to accept either one. We do 
• not endorse either one, necessarily, of conrse, but that is the 
evidence before this committee, but I am perfectly willing to 
testify as an expert on that subject myself. 

Mr. MacChesney: 

There are two other points in the report to which I would 
like to direct attention. The second one of them is that with 
reference to the molly-coddling of criminals. On that subject 
the Bockefeller Foundation has recently appropriated a consid- 
erable sum of money to investigate what some of the underlying 
causes of the present crime wave are. If the word " criminal " 
is nsed in a technical sense, meaning the treatment of the men 
after conviction, I take the liberty of diflfering from the dis- 
tinguished committee. It seems to me that what is needed is the 
quick apprehension of criminals, and the vigorous prosecution of 
them, such as was given by Whitman of New York when he was 
in oflSce, and I hope that the statement of the committee will 
not tend to retard the growing feeling that the treatment of 
y criminals, in the case of convicted men in institutions after 

conviction, should not be any more severe than it has been, for it 
has taken a long process of public education to get attention 
given to men within the custody of our institutions. And I 
take it that the molly-coddling of criminals spoken of in the 
report refers to the haphazard and sentimental way in which the 
apprehension and prosecution of them is dealt with, rather than 
the molly-coddling of the criminals after they have been con- 



76 AMERICAN BAB ASSOCIATION. 

victed. And a third point to which I desire to call attention 
is the reference in the report with respect to indeterminate sen* 
tence. The committee unqualifiedly recommends that the parole 
or probation shall not apply to second offenders. I desire to call 
attention to the fact, as no one knows better than the distinguished 
gentleman who read the report^ that men are sometimes convicted 
under conditions which later make it seem wise that they should 
be paroled, and that in some of our states attempted rape-— ex- 
tremely diflBcult to prove— constitutes rape, so that such a crime 
ought not to be brought within the purview of that resolution. I 
hope that the committee will not make an unqualified recom- 
mendation that these laws shall apply in all cases only to first 
offenders because there are cases where they should likewise 
apply to second offenders, where the first may have been a minor 
crime. It was stated by the committee, I believe, that they 
should not apply at all to those guilty of these four crimes 
when, in fact, there are occasions when they might, with good 
judgment, well be applied, and I have no doubt have been under 
the distinguished gentleman who spoke, were applied in his 
State of New York. I would be glad to hear from the conMnittee 
on those two further suggestions. 

Mr. Swaney: 

Of course, we made this report with the greatest deliberation 
and we propose to stand by it. And, in addition to that, there 
is a power reserved and placed in our Constitution for mistakes, 
misfortunes and miscarriages of justice. The governor has the 
power to pardon, and I take it in the case referred to by the 
gentleman, the governor would be the proper authority. These 
boards rob the governor of his constitutional power, and they 
are enforced in such a way as simply to make the administration 
of the law a jest. 

The President: 

The question then recurs upon the motion of the gentleman 
from N*ew York that the committee report, including its recom- 
mendation, be approved and adopted. All in favor of that 
motion will say aye. Opposed, no. I think I am safe in sayini? 
that the motion is carried and it is carried. 

Adjourned until Friday, August 11, 10 A. M. 



\ 



addbe88 of nicholas mubray butler. 77 

Sbybnth Session. 

Friday, August 11, 1922, 10 A. M. 
The meeting was called to order by Hugh Henry Brown, of 
Tonopah, Nevada, at 10 A. M., in the Native Sons Hall. 

The Secretary : 

I call your attention to the motor trip this afternoon at two 
o'clock. The busses will leave from the Montgomery Street 
entrance of the Palace Hotel. 

The Treasurer asks me to call your attention to the dinner 
tickets, which on their face give you instructions as ^p how they 
shall be exchanged for place cards, between 6.30 and 7 o'clock 
tonight at the grill room of the Palace Hotel. 

We have here applications from ninety members of the Bar, 
duly certified by their respective Local Council, and approved 
by the General Council of the Association, and recommended to 
this body for election to membership. They are all duly certified 
in accordance with the Constitution. I move their election. 

The motion was seconded and carried. 

Charles A. Boston, of New York; 

On behalf of the Council of the Conference of Delegates from 
state and local bar associations, I would like to announce that 
an adjourned meeting of that Council will be held in a room 
upstairs in this building on the next floor, immediately after 
the close of Dr. Butler's address this morning, and I hope that 
every member of the Council will be present. 

The Secretary: 

May I also call attention, Mr. Chairman, to the fact that tiie 
new Executive Committee to be elected at this session will meet 
at two o^clock, at room 2022 of the Palace Hotel, and that 
chairmen of sections or conmiittees desiring at this meeting to 
make application for appropriations for their respective sections 
or committees during the coming year, may appear before the 
Executive Committee at that time and place. 

Chairman Brown: 

The subject for this morning's address is ^* Preliminary Edu- 
cation for Lawyers." I have the honor to present Nicholas 
Murray Butler, of New York. 



78 AKBBIOAN BAR AS800IATI0N. 

Dr. Butler then delivered his address. 
{For Address, see page 278. ) 

Chairman Brown : 

President Severance will now assume the Chair. 

The President: 

I will recognize the Chief Justice of the United States. 

Chief Justice Taf t : 

I rise to make a motion : That the American Bar Association 
extend a fbrmal invitation to Viscount Birkenhead, Lord Chan- 
cellor of England, to become the guest of this Association and 
visit the Association upon the occasion of the next annual meet- 
ing, to be held at a place to be determined by the Executive 
Committee. 

The motion was seconded from the floor. 

The President : 

You have heard the motion of the Chief Justice, which is, as 
the Chair understands it, that a cordial invitation be extended 
to Viscount Birkenhead, the Lord Chancellor of England, to 
be the guest of the Association at the next annual meeting of 
the Association in 1923. All in favor of that motion will rise. 
You may be seated. All opposed may arise. It is unanimously 
adopted. 

Is Mr. John B. M. Baxter, of Nova Scotia, in the room? 
Mr. Baxter, your presence is desired on the platform. I am not 
going to call on our guest from Nova Scotia to speak now, 
gentlemen, as you will hear from him tonight. I will simply 
state for your information, if any of you happen to be ignorant 
of the fact, that Mr. Baxter is here as the duly accredited, 
and much beloved representative of the Canadian Bar. 

We will now listen to a report of the Executive Committee. 

The Secretary: 

By authority of the Executive Committee, the following 
resolution is recommended to the Association for adoption: 

Whebbas, a proposition is being urged upon the people of the United 
States to paas an amendent to the Federal Constitution, under the 



BHPOBTS OF COMMITTEES. 79 

terms of which the courts shall be deprived of their power finally to 
decide as to the constitutionality of legislative enactments, by giving 
to the Congress the power to annul or veto any decision of the Federal 
Supreme Court declaring a Federal Statute unconstitutional, or by 
making aiw such judicial decision subject to recall by legislative or 
popular referendum; now, therefore, be it 

Resolved, Bjr the American Bar Association, that we express our un- 
qualified opposition to such constitutional amendment, or to any amend- 
ment of similar character, as a most dangerous menace to our American 
Government and to American institutions. 

I move the adoption of the resolution, Mr. Chairman. 

The motion was seconded from the floor and unanimously 
adopted. 

Membenhip Committee: 

Frederick E. Wadhams, of New York, submitted a report 
on behalf of the Membership Committee. 
{See Report, page S89,) 

The President: 

The report requiring no action, it will be placed on file. 

Committee on Admiralty and Maritime Law: 

E. J. McCutchen, of California : 

In the absence of Mr. Hughes, the Chairman of this com- 
mittee, I have been reqiiested to present the committee's report. 
Under the By-Laws, it is not appropriate, as I understand, to 
refer to any portion of this report, except a recommendation 
contained in it, which is that the Association approve a bill 
pending in the House of Representatives, by which it is pro- 
vided that suit may be brought in admiralty against the United 
States, in order to enforce rights growing out of collisions be- 
tween war and navy vessels of the United States and vessels 
privately owned, and in order to enforce claims for salvage 
service. Under the law as it now exists, no such suit can be 
brought. The report of the committee states that suits of this 
nature may be brought in the maritime nations of Europe and 
in Qreat Britain. Under present conditions, should a claiih 
of this nature arise, in order that it may be enforced, it is 
necessary that a special act of Congress be first passed, and of 



80 AMBRICAN BAR ASSOGUTION. 

course we all know how difficult it is to secure the passage of 
such an act. The report of the committee recommends that the 
Association approve the bill, and authorize the committee to urge 
its passage before Congress. I move that this report be adopted. 

The motion was seconded and carried. 
(See Report, page 367*) 

Committee on Noteworthy Changes in Statute Law: 

William Marshall Bullitt, of Kentucky : 

The Committee on Noteworthy Changes in Statute Law begs to 
report that the work of the committee is progressing, but that, 
owing to the very late date at which the printed acts of the 
Legislatures have been submitted to the committee, it has been 
impossible to prepare a report at this time. But it is hoped and 
expected that such a report will be included in the printed pro- 
ceedings. 

The President : 

Is there any objection to the approval of this? If not, it will 
stand approved. 

Committee on Uniform Judicial Procedure: 

Thomas W. Shelton, of Virginia : 

This committee is one that needs to become very close to the 
members of this organization, in order that we may move as we 
should. It was with a great deal of pleasure and gratification that 
we of the committee noticed how closely the members of the 
Association listened to the Chief Justice in his address about 
reform of procedure of the courts. In order to carry out his 
program, and the program for which we have been laboring for 
about fifteen or sixteen years, it is absolutely essential to have 
certain legislation, though it is very simple legislation. It is, 
however, the most difficult thing on the face of the earth to move 
Congress, not that they are not in favor of such legislation, be- 
cause we know better, we know that both the Senate and the House 
are, by a very large majority, in favor of this matter. But, for 



BBPOBIS OF GOKHirms. 81 

some curiouB reason which no human being has eyer been able to 
understand, two or three, or not over four, Senators of the United 
States are able to control the legislation concerning this matter, 
to the extent that they have absolutely prevented a report being 
made from the Judiciary Committee of the Senate. There was 
one time that we were able to get a favorable report from the 
Senate Judiciary Committee on the matt^, but we got it out of 
con^mittee too late to get it acted upon on the floor of the Senate. 

That ifi the exact status of our work. The business of this 
committee and the object of this committee in this regard is to 
try to move Congress to action upon the subject. We became 
satisfied that we could not do it without your help as an Associa- 
tion. With your help, we can do it. 

We are going to make this suggestion, that you will take up 
the resolution which the Executive Committee of this Bar Asso- 
ciation adopted at Tampa, in January last, in which, while they 
did not exactly censure the Senate Committee, because they felt 
that that would perhaps be lise-majeste, they suggested to them 
that they have been very disrespectful to the American Bar Asso- 
ciation, and had been lacking in common respect for the great 
majority of the people of this country, who wanted the thing done 
that had been endorsed by Mr. Taft when he was President of 
the United States, and now has been endorsed here by him in 
a complete program. 

That is the matter we have before you today. And as Chair- 
man of our committee, I want to ask you individually, that you 
get into close contact with your two senators and your members 
of the lower House, and see that they understand that what we 
want is to get this matter reported out, even though the particular 
individual may be opposed to it. A great senator from this state, 
whom we look up to with respect, is opposed to it. And, as T 
say, the matter has been held in committee and not reported out. 
We have thought that it is just possible that if enough pressure 
is brought to bear upon these senators, particularly, who want to 
hold the matter in committee, we might be successful in getting 
it out, and I feel satisfied that its passage would be assured. 

We have two or three motions to put before you, but before 
doing that, I want to get clearly before you just what the com- 
mittee is trying to do. The bill before Congress is nothing more 



82 AMBBICAN BAB ASSOCIATION. 

than this: A bill to vest in the Supreme Court of the United 
States the power to make roles for the regulation of the law side 
of the courts just as it always has had the power to make rules 
of practice for the equity side of the court, and of course the ad- 
miralty and bankruptcy and many others. That is all there is 
to it. There will be another bill introduced, in order to carry 
out the views that the Chief Justice suggested to you yesterday, 
because that, as you of course understand, was the ultimate pur- 
pose, the obvious nature of the power that should have been vested 
in the court. We ask you to adopt three simple little resolutions 
and continue the committee, and in the third place we ask that 
there be left to this committee a resolution which you adopted 
yesterday supporting the Chief Justice. 

The motion was seconded and carried. 
(See Report, page S70.) 

Committee on Change of Date of Presidential Inauguration : 

The Secretary then read a letter from William L. Putnam 
reporting progress and suggesting the continuance of the Com- 
mittee. 

The President: 

As I understand it, the report merely asks that the committee be 
continued, and that the matter be referred to it. If there is no 
objection, it will be so ordered. And it is so ordered. 

Committee on Classification and Restatement of Law: 

James D. Andrews, of New York : 

Mr. Chairman, I have requested the Secretary of the Associa- 
tion to read the resolution, indicating the action of the Executive 
Committee in reference to this subject, and, after listening to 
that, I shall then present the report of the committee and its 
recommendations. 

The President : 

This report has been printed for some time, and I have no 
doubt that you have all read it. It embodies the resolution which 
has been the subject of action by the Executive Committee. 



BBPOBTS OF 00MHITTSB8. 83 

The Secretary : 

The resolution recommended by Mr. Andrews' committee is 
on page 111 of the advance pamphlet, and it is as follows : 

Resolved. That the report of the Special Committee on the Classi- 
fication and Restatement of the Law be received and adopted, and that 
said committee be continued and made a standing committee of this 
Association, and directed, in conjunction with the Executive Committee, 
to cooperate with the Committee of the American Academy of Juris- 
prudence in the plans and work of clsjasifying and restating the law. 

At the request of Mr. Andrews, I present this resolution of 
the Executive Committee at this time, in advance of his discussion 
of the committee's report, so that you may all know of the un- 
favorable attitude of the Executive Committee toward the adop- 
tion of the committee's resolution. The Executive Committee 
recommends to the Association the adoption of the following 
substitute resolution : 

Whereas, It is the opinion of the Executive Committee that it is not 
expedient for the American Bar Association to endorse at this time an^ 
specific plan or work of classifying and restating the law, therefore, be it 

Resolved, That the American Bar Association disapproves of anfi 
rejects the recommendation and resolution as proposed by the report 
to be presented at this meeting by the Special Committee on Classi- 
fication and Restatement of the Law.'^ 

The President: 

The parliamentary status of the matter at the present time, 
as it appears to the Chair, is this : Mr. Andrews' committee moves 
the adoption of the resolution contained in the committee's report. 
As a substitute, the Executive Committee moves the adoption of 
the resolution which has just been read by the Secretary. There- 
fore there is pending before the house the question of the adoptiop 
of the substitute resolution proposed by the Executive Com- 
mittee in the matter. 

Henry W. Taf t, of New York : 

I move that the action of the Executive Committee, be ratified 
and adopted as the action of the Association. 

The President: 

That is the very motion that is pending already. This was 
put in the form of a substitute resolution offered by the Executive 
Committee. 



84 AMERICAN BAR ASSOCIATION. 

Mr. Taft: 

Then I second that resolution. 

The President : 

Now Mr. Andrews^ you have the floor. 

Mr. Andrews : 

I wish to present to you the action which has been heretofore 
taken by the American Bar Association and by the Executive 
Committee of the American Bar Association, in reference to this 
matter, and then to explain to you what has been done by this 
Executive Committee, and to submit to you the resolution 
embodied in the report — ^mark, I say the resolution embodied ia 
the report; the motion is not that we adopt the report in ioto, be- 
cause, since the report was written, a different condition of 
affairs has come about. 

The apparent effect of this substitute resolution recommended 
by the Executive Committee is to undo all of the work that has 
been done during the last five years. I believe that this Ameri- 
can Bar Association, when it takes action, should require sub- 
stantially logical and reasonable cause for the reactionary step 
that is proposed to be taken. The matter of the classiflcation of 
the law came before this body the first time in 1917, in a resolu- 
tion and a committee was appointed, of which Mr. Hampton L. 
Carson was the Chairman. In 1919, in a very able report, Mr. 
Carson distinguished very clearly between the subject of the clas- 
sification of the law and restatement of the law under that classi- 
fication, and he recommended that this Bar Association do take 
up the work and continue the work of the classification of the 
law, and leave the subject of the restatement of the law to a sub- 
sequent report. Later Mr. Carson was elected President and 
I was then made the Chairman of th^ committee. In 1920, the 
committed reported, offering this resolution : 

That the report of the Committee on Classification and Restatement 
be received and adopted, and that said committee be continued, and 
that it be and is hereby authorized and directed, in conjunction with 
the Executive Committee, to take such steps as may be deemed neces- 
sary and expedient to co-operate with anybody which has for its pur- 
pose the carrying on of the proposed work of the classification and re- 
statement of the law. 



BSPOBTS OF GOMMITTBES. 85 

That committee^ after colnmentiiig upon the growing con- 
fusion of the law^ and the fact that there had been no con- 
certed action on the part of any body competent to do a work of 
that kind^ stated its opinion to be as follows : 

It seems, therefore, to your committee that the drift of the law 
towards imcertainty, confusion, and variation, is progressing, and that 
the time has come to take the necessary steps to inaugurate an 
organized and permanent effort to improve the American legal system 
in all its parts and as a whole. 

Now^ the members of the Committee^ aside from the Chairman, 
were Adolph J. Bodenbeck^ a gentleman who has had experience 
in the line of consolidation and restatement of the law of the 
State of New York, on the Commission of Consobdation of the 
Law; Frederick W. Lehmann, once the President of this Associa- 
tion and a very distinguished lawyer; Samuel Williston, of 
Harvard University; David W. Amram, of Pennsylvania; Edgar 
A. Bancroft, of Chicago ; Roscoe Pound, then and now Dean of 
the Harvard Law School ; Harlan F. Stone, then the Dean of the 
Law School of Colimibia University; and Edmund F. Trabue. 
The action of the American Bar Association at that time consti- 
tutes the action of this body. 

Pursuant to that direction, the matter was subsequently laid 
before the Executive Committee of the American Bar Association, 
and this is the action taken by the Executive Committee of the 
American Bar Association, as appears from this letter written to 
me by Mr. Kemp, under date of April 27, 1921. (A letter from 
the Secretary was then read quoting the resolutions approved by 
the Executive Committee and heretofore reported in 1921 Report 
page 482.) 

These resolutions of the Executive Committee were in accor- 
dance with and carrying forward this great work, and these resolu- 
tions distinguish very carefully between specific plans for classifi- 
cation and specific plans for organization for the purpose of 
co-operation. And so far as the opinion and action of the Execu- 
tive Committee at that time is concerned, it is full and conclusive. 

I wish to say that the reference in this letter to the fact that 
the resolution offered to them had been modified, refers to the 
proposition, for the first time appearing in the plans for the 
carrying out of this work, of the inauguration of a corporation 
to do the business part of the work, " but that the formation of 



86 AMERICAN BAB ASSOCIATION. 

any corporation would be a matter for individuals rather than 
for this Association/' 

For the purpose of carrying out the practical working of a 
systematic restatement, a corporation called the Academy Pub- 
lishing Company, was formed, and the formation of that corpora- 
tion necessitated the submission of plans of action. In the exercise 
of caution, and for the purpose of securing the action of a con- 
servative committee and of keeping matters within limits, within 
bounds that would be satisfactory to the Executive Committee of 
the American Bar Association, and therefore satisfactory to the 
American Bar, I submitted to the Executive Committee at Tampa, 
Florida, in January, last, a proposal that the Committee appoint 
a sub-committee to pass upon the plans of organization, the man- 
ner in which the stock of the corporation should be trusteed for 
the benefit of the American Bar Association, and to exercise their 
censorship in whatsoever way they saw fit. 

Now, in order that you may understand the purport of this 
proposition, it is this: The Bar Association, after having had 
this matter before it for thirty years on and off, and for four years 
of that time intensive and careful study having been given it, 
proposed this plan of organization. It was proposed that this 
business organization should be incorporated for the purpose, of 
course, of conducting business which this Association is not 
organized or adapted to conduct. We recognize the practical 
proposition that any restatement of the law that can be made 
must be made in the shape of the written page, and that to carry 
out the spirit of the American Bar, to have a statement, a uniform 
conception, of what our law is, it must take the form of a complete, 
systematic restatement of the law. And vnth that proposition, 
one hundred of the greatest jurists in this country, and four or 
five of the greatest jurists of the world, have been in entire accord, 
many of them stating that the primary benefit of this organiza- 
tion was not so much a benefit to the Bar as a great public service 
to the people, by rendering their law certain, specific, and 
definite. 

To that end, this organization was devised for the purpose of 
organizing and mobilizing the best brain power of the members 
of the Bar upon this proposition. To that end, it was designed 
that we would organize and mobilize the resources of the Bar, 



REPORTS OF G0MMITTBE8. 87 

financial and intellectual^ in order that they may exercise, during 
the process of the construction of the work and before it was 
published^ a censorship^ beneficent, specific, and complete in 
detail. 

With that in view, we have marched forward steadily, cau- 
tiously, conservatively. This sub-committee of the Executive 
Committee came to my oflBce in New York, and by the way, let 
me go back a moment and say that, before Mr. Carson's com- 
mittee took any action at all, they employed a distinguished 
professor, whose name is universally known here, Professor 
Edwin M. Borchard, of Yale, to spend the time to make a de- 
tailed examination of the, plans and the material and the sug- 
gestions — ^the whole proposition. Professor Borchard spent two 
weeks, made his report, and following that was the report of the 
committee made by Chairman Carson. Following the meeting 
in January of this year, this sub-committee came to my oflBce 
for the specific purpose of examining into whether or not the 
preparation by way of material, of plans of classification, of 
plans of organization, was rational and might be with propriety 
approved, and whether the trusteeing of the stock for the benefit 
of the Jurisprudence Fund, which should simply and perpetu- 
ally and forever support a continuous and uninterrupted and 
intensive study of this work should be made. That committee 
spent two days in New York. That committee expressed it- 
self at that time as being entirely satisfied with the plans, 
with the materials, and that our preparation was adequate, 
the other committee having reported that we had a vast amount 
of material collected and arranged and organized, and that 
we had all the plans of classification that had been printed 
in English collected for the purpose of comparison and con- 
sideration by the committee, during the next year which was 
to be, according to the plans, the work of the committee^ that 
of formulating the plans. The members of that committee, Mr. 
Brosmith and Mr. Shelton, not only expressed their approval, 
but since that time they have written me that their report would 
be a favorable one, but they also signed the order for a set of 
the books, according to the plan upon which it was based. I 
was unable to secure a copy of the report which was submitted 
by this committee to the Executive Committee, and I observed 



88 AMEHIOAN BAB ASSOCIATION. 

in the reading of the proceedings of the Executive Committee 
that that action and that report were omitted from the report 
of the committee. 

Now, gentlemen, the Executive Committee of the American 
Bar Association — well, it is a very powerful body. The Execu- 
tive Committee of this Association is something more than the 
alter ego, I think it is almost a del credere agent, I think it is 
assumed to be the directing head entirely of the organization. 
I am sorry for this committee — I am truly. They are very 
estimable gentlemen. They, on the whole, mean to do right. 
If they are not coerced or frightened, they do generally do right. 

I am going to tell you what has happened. Following the 
action of the Association of the American Law Schools, an 
organization or a proposed organization has been suggested, 
with no very definite plans exceptitig the general plan which 
is all proper and definite enough, for the improvement of the 
law and litigation, and Mr. Elihu Eoot has been selected the 
Chairman. Out of consideration to that proposition, is the 
only reason that I have heard suggested yet, excepting the 
proposition that the Executive Committee is not prepared to 
go forward with the business of organization just as it stands, 
why it should not be carried out. With the last proposition 
stated, I am entirely in accord. We submitted it to them for the 
purpose of their amendment and their approval, and if, after 
their sub-committee approves it, they still feel that it is impru- 
dent and imwise to proceed, my proposition is that they amend 
it and perfect it. But the idea that this report, as a whole, 
completely, and this whole project, shall be turned down, rejected, 
smothered, within the period of, you may say, a few weeks — is a 
proposition that I am opposed to utterly. 

Now, let us see exactly what the Executive Committee of the 
Bar Association means by the proposal as read here by the 
Secretary. Our law has drifted constantly and steadily to- 
wards confusion; notwithstanding all the efforts of this Asso- 
ciation for the last forty years, our efforts in the direction 
of legal education have not stemmed the tide. And the Com- 
mittee on Classification, in which are embraced these great legal 
educators, have stated that the tendency is constantly towards 
confusion, and that the sporadic efforts of law writers are not 



RSP0BT8 OF GOMIUTTBBS. 89 

able to stem it. Therefore this work haa been attempted, and 
the committee asks the American Bar Association, that is, I 
mean the Executive Committee asks the American Bar Asso- 
ciation to reject this report. 

Let us see this report again and see what there ifi in it 
that can be rejected and that must be rejected, of course, because 
no one would think of going forward for a moment where the 
business organization waa not approved in every detail by the 
Executive Committee. The concrete and exact propostion be- 
fore us is : *' Resolved, that the report of the Special Com- 
mittee on Classification and Restatement of the Law be received 
and adopted and that the said committee be continued,'' and it 
then reads, ^' and made a standing committee of the Associa- 
tion.*' Of course that last must be stricken out, on the same 
grounds that there was stricken out of the report made yester- 
day by Mr. Saner a certain reference, as it requires a constitu- 
tional amendment to make a committee a standing committee — 
*'and directed to cooperate with the American Academy of 
American Jurisprudence in the work of re-classifying and re- 
stating the law." The committee reported, as we supposed was 
within our province, *'that an organization has been affected 
for the performance of the object in view.'' 

The motion I desire to have placed before the house now is, 
that these two subjects be divided, and as a substitute for 
both of the motions, that for the adoption of the committee's 
resolution and that for the adoption of the Executive Committee's 
resolution, I move on behalf of the committee that the report of 
the Special Committee on Restatement of the Law be received but 
not adopted as a whole. Do I have a second to that proposition? 

The motion was seconded from the floor. 

The President: 

Is there any objection on the part of the Association to 
receiving the report? If not, it will be understood to be re- 
ceived and filed. The report is received, but not acted upon, 
and the motion is still before the house on the substitute as 
submitted by the Secretary on behalf of the Executive Com- 
mittee. 



90 AMERICAN BAR ASSOCIATION. 

Mr. Andrews : 

I move further that the committee be directed, in conjunction 
with the Executive Committee, to cooperate with the Committee 
of the American Academy of Jurisprudence in the plans and 

work of classifying and restating the law. 

« 

The President : 

You have heard the motion made by the Chairman of the 
committee, which he offers as a substitute for the motion of 
the Secretary, made on behalf of the Executive Conimittee. 
Are there any remarks upon that motion ? 

Garrett W. McEnemey, of California: 

The question is on the substitute, Mr. President? 

Mr. Andrews: 

The motion I am now taking is as a substitute, Mr. President. 

George W. Wickersham, of New York : 

I oppose the resolution of the special committee and advocate 
the adoption of the resolution recommended by the Executive 
Committee. I think the Convention will not have failed to 
notice that this Association shall '^ cooperate with the American 
Academy of Jurisprudence " in this matter of a restatement of 
the law. No one will dispute, I take it, Mr. President, at this 
time, the advantage or the necessity of a scientific restatement 
and classification of the law. The real question is whether that 
shall be done as a commercial matter, this Association taking part 
in a commercial enterprise, or whether it shall be done under 
appropriate conditions, in a scholarly way, as a matter of sound 
legal scholarship. I suppose that all the members of the Associa- 
tion have received a pamphlet which is widely circulated and which 
IS really at the base of this proposal, entitled, " A Classification 
and Eestatement of the Law, under Cooperative Direction of the 
American Bar Association and the American Academy of Juris- 
prudence. Issued by the Academy Publishing Corporation, of 
New York.*' There is set forth the plan which is proposed, in 
effect, by the resolution offered by the committee and supported by 
Mr. Andrews, and the plan is set forth on another page of this 
pamphlet, where it is shown that a business organization has 



BHP0BT8 07 C0MMITTBB8. 91 

been organized^ known a^ the Academy Publishing Corporation, 
three-fifths of whose stock was to be held in trust for the Ameri- 
can Academy of Jurisprudence — and there is no statement as 
to what that body is or as to who compose it — and two-fifths 
of it was to be held in trust for the American Bar Association. 

That is a familiar plan of publication. A selected list of 
gentlemen has been made who axe offered the privilege of sub- 
scribing $800 each to the purchase price. But the significant 
thing is that there is nowhere a statement of when or what the 
subscribers are to get for their money, and the entire contributed 
fund may be spent and nothing returned to the subscribers. 
Viewing this as a commercial enterprise, it is radically defec- 
tiye in that particular — ^that the money may be collected and 
spent and nothing given to the subscribers. If the enterprise is 
to be conducted in a scientific manner, there should be a different 
organization. 

I take it, Mr. President, that when this resolution was pre- 
pared by the Executive Committee, it had read and considered 
the matter, and felt, as I have no doubt every member of the Bar 
who reads this must feel, that it was not such a project as the 
American BUr Association should commit itself to. ' Therefore, 
Mr. President, I earnestly advocate the adoption of the resolu- 
tion recommended by the Executive Committee. 

)Ir. Andrews : 

The first proposition made by the learned gentleman is that 
this should not be a matter of commercialism. The question 
of what is and what is not commercialism has been xmder dis- 
cussion, for the last ten years, ever .since the " Green Bag ^ 
exposition, in which some attempt was made at an organization 
which should exclude commercialism — that was the key, the 
very heart of the covenant — ^and it was to be excluded in this 
case by the very means which we have taken. 

Now, what do we mean by '^ removed from the pain and terror 
of commercialism '' ? Namely, that persons indifferent to the 
integrity and the improvement of the law should direct and 
should make the manuscript, and that the funds which should 
arise from the sale and distribution of bodes, because there is 
no dreamer so wild as to suppose that imder any foundation or 



93 AMBRICAN BAB ASSOCIATION. 

any plan of governmental or state action, a corpus juris or 
a book of law in this country can be created and distributed 
free and without price — it must be created according to business 
methods, it must be sold. But the body that furnishes the 
money will always control, and if the American Bar furnish 
the money, as. it is proposed in this case, they will control 
through the American Bar Association, have absolute control 
and direction of this work, and the profits which shall arise 
from this foundation are to be placed, the stock is to be trusteed 
in the hands of trustees selected by the American Bar Asso- 
ciation, the sole profit to go as an endowment or jurisprudence 
foundation for the benefit of the Bar, for the improyement of 
the law, and for the benefit of the public. And that this was 
considered important and rational, I will show you by the action 
that we took in the formation of the organization known as the 
" Academy Publishing Company.'' It had to be a corporation, 
and it had to have a name, the statute so required, and it had to 
have officers and had to have capital and that capital had to be 
fully paid, beyond any dispute. This is a letter of April 9, 1921, 
addressed to me as Chairman of the Organization Committee, 
American Academy of Jurisprudence, and reading? 

Mt DEAB Snt: 

I have considered the matter of the oiganization of the Academy 
Publishing Corporation, which is a work in conjunction with Uie 
American Academy of Jurisprudence, in the publication of the classi- 
fication and restatement of law, since my talk with you in Albany a short 
time aco. I write to say to you that, if the Academy Publishing Com- 
pany aesires me to act as treasurer, and one of the directors of such 
organization, I shall be pleased to serve in such capacity, and will 
do what I can toward the success of the importanii work attending the 
classification and restatement of the law. 

Very truly yours, 

Fbedbbick £, Wadhams. 

We selected for your benefit, in order that there should be no 
chance whatever for even a suspicion of a diversion of the funds, 
the Treasurer of the American Bar Association to handle those 
funds. 

Now, on the proposition that there may be something paid 
without getting anything for it. The plan is carefully guarded 
in that respect — most carefully guarded in that respect — and 
the specific contract is contained in the order, not explained in 
detail in the pamphlet. The plan is that when you have received 



BBPORTS OF COMMITTEES. 93 

contributions of exactly the same kind that sixty or seventy of 
the great lawyers of this country have made, you would have 
in the treasury of the organization $400,000, out of subscriptions 
at $500 each — ^more capital than was ever put before this organi- 
zation, and there never was a book of this character that was 
started for sale but was started on subscriptions, and never 
did one of them have a single page other than proposed sample 
pages of the proposed book. The American Bar Association 
in the last thirty years has paid out $90,000,000 for law books. 
They pay out annually about $4,000,000 for law books. They 
pay out annually about $1,000,000 for books embraced within 
this proposal. Now, can we, have we the solidarity of action, 
is it possible to have an organization which is capable of mobiliz- 
ing the resources, conserving the resources, and building up 
a great 'jurisprudence fund which will enable the Bar Asso- 
ciation to support all of these activities? The American Bar 
Association is so poor that it cannot and it does not give its 
committees sufficient funds, each one of them, to hold a real 
committee meeting. And if the Bar Association will approve 
what has been approved up to within the last few weeks — well, 
I don't ask the American Bar Association to approve, against 
the will of the Executive Committee, — the detailed plan of 
the organization in which we shall work, and as for the plans 
of classification, it is specifically provided in the letter of Mr. 
Kemp that that work should be the work of the coming year, 
the work of revising the classification, before, of course, a 
single page of the book would be set forth, would be adopted. 
The first conmiittee reported that classification was the beginning 
and the end of the science, that classification of the law was 
absolutely necessary to its further improvement. 
Now, gentlemen, I will pass to the resolution. 

A Member: 

May I ask the gentleman a question ? What is the American 
Academy of Jurisprudence? Who compose it? 

Mr. Andrews: 

The American Academy of Jurisprudence was an organization 
of distinguished men organized in 1914, just before the war. 
The President of the Association was Mr. William Howard Taf t, 



94 AMEBIOAK BAB ASSOCIATION. 

and Mr. Boot and Mr. Parker and Mr. Wickersham and Mr. 
Coudert^ and so on — ^there were a large number — fifty-five mem- 
bers in all. They appointed a governing body^ consisting of 
fifteen .men^ Mr. Root, Mr. Harriman, Mr. Williston^ Mr. Pound, 
and men of that character. The war came on that summer. It 
takes a litle time to get started in a matter of that kind, a matter 
of such weight, involving the questions that it did. Of course 
there could then be nothing publicly done in a matter of that 
kind. But the discussion of the important question involved was 
not abated. It was at the meeting in 1916 that Mr. Hoot gave the 
impulse to this affair by referring to this very corporation and 
saying that a body of very earnest.and very able men were engaged 
in bringing about a definite, specific organization. 

Mr. Wickersham: 
Haven't they all resigned ? 

Mr. Andrews: 

No, they have not. There have been three resignations. 

Mr. Wickersham: 
Who were they? 

Mr. Andrews : 

You haven't resigned. You can resign now. They say the 
good Indians are the dead Indians, but the good lawyers are 
the live ones. We are fighting to a finish. 

W. F. Mason, of South Dakota: 

May I ask this question: How long do you estimate it will 
take to complete this work? 

Mr. Andrews: 

About seven years. We have an opinion of an expert on that. 

Mr. Mason: 

What would be the cost to the practitioner? 

Mr. Andrews: 

The cost to the practitioner, as now arranged, would be $800 
for the library — there is no compulsion whatever in the purchase 
of it, of course. 



REPORTS OF C0MMITTEB8. 95 

Mr. Mason: ^ 

I would like to ask this question. Is this a scheme to get the 
book endorsed, a publication not in being? 

Mr. Andrews : 
Yes. 

Mr. Mason: 

It would have no authority in any state if adopted by this 
Association. 

Mr. Andrews: 
Oh^ no^ not at all. 

Mr. Mason : 

It would not be binding on anybody at all ? 

Mr. Andrews: 
No, sir. 

Mr. Mason: 

It would be a commentary on the statute law. In other words, 
it means another scheme to have the lawyers of this country 
buy another set of books. 

Mr. Andrews: 

If you want to call it a scheme, well and good. We call the 
matter a plan to make a specific restatement of our law, complete 
and definite, and it has had the endorsement of the greatest of 
the jurists, without any doubt, up to within a very few weeks. 

The President : 

The question now occurs upon the substitute offered by Mr. 
Andrews, which is that this matter proceed under the joint con- 
trol of the Executive Committee of the American Bar Associa- 
tion and the Academy Publishing Corporation. All in favor 
of the substitute will say " Aye.'* Those opposed, " No.*' The 
motion is lost. 

The question now recurs upon the motion made on behalf of 
the Executive Committee of the Association by the Secretary, Mr. 
Kemp, which I will again read to you, that you may have its 

4 



96 AMERICAN BAB ASSOCIATION. 

terms precisely before you: (The President then re-tead the 
proposed resolution.) 

All those in favor of the adoption of the resolution will say 
" Aje" Opposed, " No/^ The ayes have it, and the resolution 
proposed by the Executive Committee is adopted. 

Mr. Andrews : 

I move, Mr. President, that the Committee on Classification 
and Restatement of the Law be continued. 

The motion was seconded and carried. 
{See Report, page 391.) 

Committee on Legal Aid Work : 

Reginald Heber Smith, of Massachusetts: 

The Committee on Legal Aid work asks you to adopt its 
report, in which there is contained the following recommenda- 
tion that the Association hereby requests the oiBcers of the 
Section of Conference of Bar Association Delegates to bring 
the subject of legal aid work before the members of the Section 
as soon as may be, to the end that every state and local bar 
association may be encouraged to appoint a standing committee 
on legal aid work. 

The report is before you, and I think that a very short state- 
ment will satisfy you as to the reasons of this recommendation. 
In England, in Scotland, and I have recently learned from our 
distinguished visitor from the French Bar, in France also, legal 
aid work is carried on by the Bar itself. In this country, we 
have built up special org:anizations for the purpose, called legal 
aid organizations. But that does not lessen the individual 
lawyer's duty towards the matter, nor does it lessen the concern 
of the organized Bar in the matter. The only way the organized 
Bar can act is through a committee. The American Bar Asso- 
ciation already has its committee. What we want now is that the 
state and local bar associations should emulate our example. 
In New York, San Francisco, and other points, the Bar Associa- 
tion has already done so. What we are after, ladies and 
gentlemen, is that there should be an effort throughout this 
country, through special committees of all bar associations on 



REPORTB OF OOMMITTEES. 97 

legal aid work, to promote and perfect this work, so that nowhere 
in the United States will it be possible for any man, no matter 
how humble^ to be denied his day in court, because of his inabil- 
ity to pay fees and costs. 

Mr. Chairman, on behalf of the committee, I move the adop- 
tion of the resolution. 

The motion was seconded and carried. 
{See Report, page Jlfi2,) 

Conmiittee on Aeronautios : 

William P. MacCracken, of Illinois : 

The Committee on the Law of Aeronautics has three recom- 
mendations in its report. The first one is that a committee 
be appointed to carry on the work of the committee. The second 
one is that the discussion of a Constitutional amendment to vest 
exclusive jurisdiction over aeronautics in the federal govern- 
ment be discontinued until such time as the state and federal 
legislative bodies have adopted laws and those have been con- 
strued by the Supreme Court out of which they will eventually 
come. It seems that one of the greatest bugaboos in getting 
legislation passed, either through the state legislature or through 
the national legislature, is that somebody will claim it is uncon- 
stitutional. And we felt the need was for enacting favorable 
legislation, that aeronautics might be developed. 

The third recommendation I am going to take the liberty of 
reading. It is this : ^' That the members of the American Bar 
Association be urged to cooperate with the national authorities 
and with the local authorities in their respective states, to the 
end that governmental action may result which will tend to the 
development of aeronautics in the United States, thereby con- 
tributing to our national prosperity and strengthening our 
national defenae.^^ 

In explanation of that recommendation, I want to call your 
attention to the Uniform State Law of Aeronautics, which was 
adopted by the Commissioners of Uniform Laws, on Monday of 
this week. If there is any legislation proposed in your respective 
states, we would urge upon you to see that it conforms in toio to 



98 AMBRIGAN BAR ASSOCIATION. 

this particular act. The bill has been gone over carefully^ it was 
the subject of the conference of two committees in Washington 
last February^ and we feel unqualifiedly that it is the best thing to 
introduce and pass in the respective state legislatures. 

With reference to the federal constitution^ let me state that 
the Wadsworth-Hicks bill^ as it is called, is still pending before 
the Interstate and Foreign Commerce Committee of the House, 
that since this report was prepared, the Chairman of the com- 
mittee and Mr. Davis, another member, had a conference in 
Washington with Judge Lamb, who has since resigned as solicitor 
for the Department of Commerce, who had been working on that 
particular bill, and also with Mr. Winslow, the Chairman of the 
committee. And we are in hopes that before this Congress ad- 
journs, a satisfactory bill will be introduced and passed. If not, 
we suggest that there be presented by the succeeding committee 
a bill which they believe will be satisfactory. In Washington it 
developed from the point of view of the aircraft industry that 
they were so desirous of legislation by the federal government, 
that they wanted the best legislation obtainable and not any 
particular legislation. Therefore the committee determined to 
cooperate with the authorities in Congress rather than to attempt 
to draft legislation of our own. But if that does not result in 
having the coming Congress pass such a bill, it seems to me that 
the policy should be to press state legislation and, if possible, get 
it through. I move, Mr. President, the adoption of the report. 

The motion was seconded and carried. 
{See Report, page 4IS.) 

Committee on Intemal Bevenue Law and Its Means of Col- 
lection : 

Charles Henry Butler, of Maine : 

This committee was a special committee, and the President 
did me the honor of making me the chairman of it. Our report 
is a very brief one. We were able to have only one or two meetings 
of the committee in Washington, but we took up with the Secre- 
tary of the Treasury and the Commissioner of Intemal fievenue 
and the higher officers in charge some questions of modification 



RKP0RT8 OF COMMITTEBS. 99 

of the practice and procedure in this connection. The committee 
did not presume to take up legislative matters^ feeling that any 
matter of that kind should be at the special instruction of the 
Association. What we did was to endeavor to obtain a modifica- 
tion of some of the rules and regulations of the Treasury Depart- 
ment^ the Internal Revenue Bureau^ in regard to the status of 
attorneys. And in our letter to the Secretary of the Treasury 
and the Commissioner of Internal Revenue^ which is included in 
the report, we have made .various recommendations which I will 
not read, but I will just refer to them. 

One of them was that attorneys practicing before the Depart- 
ment should not only be subject to the pains and penalties which 
are in the regulations, but they should also have the privileges 
of attorneys, and that the rule that when an attorney appeared 
properly qualified to represent a taxpayer, thereafter the attorney 
should be the sole channel of communication with the client, 
and the attorney should not be embarrassed by having notices 
and decisions sent direct to his client without in any way noti- 
fying the attorney who had appeared before them and who was 
responsible for the conduct of the case — that that modification 
of the rule should be made. We obtained from the Commis- 
sioner — and I will say that we were very cordially and courteously 
received by the higher oflBcials of the bureau — ^proper considera- 
tion; and they have promised that the omissions on the part 
of the staff in that respect will be remedied and prevented in 
the future, and that furthermore, when an attorney once files 
a power of attorney in connection with a matter before the 
Department, he should be recognized to the conclusion of the case. 

Another matter that we urged was that opinions by the bureau 
in regard to matters determined there should be given wider 
publicity. We have been very greatly impressed, and all those 
here who practice before the Treasury Department will appreciate 
this, by the fact that we frequently have to argue a case there 
without knowing what the law is, because the opinions have been 
marked *' Confidential.'* One matter was whether the question of 
depreciation was covered by a bond. It was being argued before 
the Court of Appeals, and reference was made to a certain 
opinion as authority. Counsel for the Government said, " Cer- 



100 AMERICAir BAB ASSOCIATION. 

tainly^ that opinion does so say, but we are bound by confidential 
opinion No. 27.'* The question was then asked what confi- 
dential opinion No. 27 was, and the reply came, "We can't 
tell you — ^it is confidential.'' And the question was asked if 
the case was to be argued without knowing what the rules 
were, and the reply came, " Certainly. That is a confidential 
opinion." Finally the Chief Justice, if he might be so called, 
the Chairman of Appeals and Eeviews, said that he would have 
a private conference with a representative of the unit as to what 
he felt confidential opinion 27 amounted to in this case. They 
went out of the room, and when they came back, they said that, 
after all, they had come to the conclusion that confidential opinion 
27 did not apply in this case, and we therefore proceeded. 

That appears to be ridiculous, gentlemen, I know. But the 
question of whether confidential opinion No. 27 applied involved 
more than a half million dollars of taxes that the taxpayers would 
have to pay, and we were forced to argue as to whether or not 
the rules of depreciationj did apply, without knowing what 
confidential opinion No. 27 was. We have presented that to 
the Secretary of the Treasury, and to the Commissioner of In- 
ternal Revenue, and to the others, and we now hope that, sooner or 
later, those opinions of the Supreme Court of the Internal Rev- 
enue Department will be given to the Bar. 

Another point that we took up was the question of some small 
questions of practice, and as to those they have said they would 
help us, and that when our papers are filed they would be accep- 
table. 

One further matter which is a matter of substantive law 
rather than of practice, is the question of forcing the taxpayer to 
pay ii^ his taxes, file a protest, and then bring suit to recover 
when in many cases that question would be brought up by the 
Government bringing suit or raising the question in such a way 
it could be decided before the department has been committed 
on the question, and has to go on mulcting the taxpayers until we 
are finally relegated to the courts, where the argument is made 
that the decision being made by an administrative department 
which has administration of the statute, has all the presumption 
of correctness. And we go before the courts with the presumption 



BLBOnON OF.OFFXOEBS. ' 101 

against us^ because the counsel for the Qov/^nment has decided 
the case in the Government's favor. 

Those are some of the matters which we have tciken up, and 
which we are urging upon the officials in the d6p^t^H^^nt. In 
some respects we hope that our action may be successful, &t least, 
in the direction of modifying the present conditions. Our only 
recommendation is that the committee be continued and puri3ue 
the work which it is now doing. We ask that it be continued for 
the reason that the work is so far only partially concluded. 

I move the adoption of the report. 

The motion was seconded and carried. 
{See Report, page 4SS.) 

The President: 

Next in order is the nomination and election of officers. Mr. 
Hart, the Chainnan of the General Council will report the nomi- 
nations made by the General Council. 

W. 0. Hart, of Louisiana: 

The report of thp General Council is as follows : 

August 11, 1922. 
To the Members of the American Bar Association in Annual Meeting 
Assenibled: 

In accordance with vote cast at the meeting of the General Council 
held this day, the following are nominated for election as officers of the 
Association for the ensuing year: 

For President: John W. Davis, of West Virginia. 

For Treasurer: Frederick E. Wadhams, of New York. 

For Secretary: W. Thomas Kemp, of Maryland. 

For members of the Executive Committee: Hugh H. Brown, of 
Nevada; John B. Corliss, of Michigan; John T. Richards, of Illinois; 
Thomas W. Blackburn, of Nebraska; Wm. Brosmith, of Connecticut: 
S. E. Ellsworth, of North Dakota; Thomas W. Shelton, of Virginia and 
A. T. ^tovall, of Mississippi. 

Mr. President, on behalf of the Council, I move the election 

of the officers named in the report of the Coimcil, and that the 

Secretary cast the ballot of the Association for them as named. 

The motion was seconded and carried and the officers named 
were declared unanimously elected. 

The President : 

I will now recognize former President Francis Rawle, of Phila- 
delphia, Pennsylvania. 



102 AMERICJ^N BAB ASSOCIATION. 

Francis Bawle^ ot J^CHnsylvania : 

Mr. Presidenir:';.r*'h&ve the honor to move the adoption of this 
resolution:. : '•. 

Resolv^'dp* That the American Bar AcBOciation in general meeting 
aasemblea, jtereby express to the California Bar, to his Excelleiicy the 
GpvemoT of California, and to the Ladies Committee, their great ap- 
.|iracia{ion of the generous hospitality extended to the Association and 
* 4tt» members which has made this, the largest meeting of the Associa- 
tion ever held during the forty-four years of its existence, the most 
enjoyable and inspiring event in its history. 

The beauty of the city of San Francisco and its environs, its stimu- 
lating and inspiring cUmate and the generous courtesy of the California 
men and women, all have combined to make our sojourn in San 
Francisco a period of pure enjo3rment. 

The members of this Association will carry away with them unfading 
memories of friendship, kindliness, and naturkl beauty. 

The President: 

A resolution of that character needs no second. All in favor 
of its adoption will stand, and while standing will vote " Aye." 
It is unanimously carried. 

Nathan Newby, of California and William V. Rooker, of Indi- 
ana, offered resolutions which were referred without reading to 
the Committee on Law Enforcement and the Executive Com- 
mittee, respectively. 

Adjourned sine die, 

W. Thomas Kemp, Secretary. 



SECRETARY'S REPORT 

San Prancisoo, Cal., August 9, 1922. 
To the American Bar Association: 

The report of the proceedings of the last annual meeting of 
the Association has been printed and distributed to all members^ 
to all state bar associations and to legal journals and libraries^ 
both in the United States and abroad. 

There were 15^163 active and 18 honorary members at the date 
of the publication of the 1921 report. There have since been 
about 750 deaths and resignations, and the proposal of 3003 new 
active members, all of whom have been elected by the Executive 
Committee making the present membership about 17,000. The 
Executive Committee, also elected Sir John A. Simon of London, 
England, and Dr. R. Masujima, of Tokyo, Japan, to honorary 
membership. 

The membership includes representatives of all the states, of 
the District of Columbia, and of the insular possessions of 
Hawaii, Porto Rico and the Philippines. 

There are now in existence 47 state bar associations, and also 
the Bar Association of the District of Colunibia, and the Bar 
Association of Hawaii. In addition there are more than 900 local 
bar associations of which we have record. • 

The Secretary has endeavored to keep in close touch with the 
state organizations during the year. In lieu of invitations as 
formerly issued to state bar associations for appointment of three 
delegates to the annual meeting, invitations are now issued by the 
Conference of Bar Association Delegates to each state associa- 
tion to send three delegates and to each local association to send 
two delegates to the Conference, such delegates also to represent 
their respective associations at the meeting of the Association. 

The Secretary attended the Special Conference on Legal Edu- 
cation arranged by a joint Committee of the Section of Legal 
Education and the Conference of Bar Association Delegates. This 
Special Conference was largely attended and resulted in the adop- 

(103) 



104 AMEBIGAK BAB ASSOOIATION. 

tion of the resolutions recommended by the Association at its 
1921 meeting. 

The Secretary has continued to supply, upon request, copies 
of the Canons of Professional Ethics; about 1600 copies have 
been distributed since the last annual meeting. 

Notices were duly sent by the Secretary to all standing and 
special committees, requesting attention to matters particularly 
referred to them. 

The reports of certain committees for the year 1921-1922 were 
printed in a special pamphlet, which issued to members more than 
30 days in advance of the meeting. The reports are as follows : 

Standing Committees, — Admiralty and Maritime Law; Com- 
merce, Trade and Commercial Law; Jurisprudence and Law 
Reform; Legal Aid; Professional Ethics and Grievances. 

Special Committees, — Uniform Judicial Procedure; Classifi- 
cation and Eestatement of the Law ; Law of Aeronautics ; Internal 
Revenue Law and its Means of Collection ; Law Enforcement. 

Sections, Allied Bodies, etc. — Comparative Law Section, and 
Section of Patent, Trade-Mark and Copyright Law. 

The new monthly Joubnal has now completed its second year. 
The Secretary has co-operated closely with the Board of Editors 
of the JouBNAL, and has from time to time supplied current in- 
formation concerning the aifairs of the Association. The Sec- 
retary's office has had charge of the details of the printing and 
issuance of the Annual Report, the pamphlet containing the re- 
port of the proceedings of the Special Conference on Legal Edu- 
cation above mentioned, and the special pamphlet containing 
reports of standing and special committees. 

In response to a growing demand, and by direction of the 
Executive Committee, the Secretary has re-arranged the geo- 
graphical list of members by cities and counties, instead of merely 
by states as formerly, and has inserted opposite the name of each 
member the date of his election. The new list appeared in the 
1920 volume of the Association reports, and has been revised and 
re-published in the 1921 volume. 

The Secretary has received during the year reports of the vari- 
ous state bar associations, and a number of other books, all of 
which have been acknowledged through the Joubnal. 



SECRETABT^S REPOBT. 105 

The Secretar/8 office, established in Rooms A and B of the 
Palace Hotel, will use the system of registration cards as in re- 
cent years. These cards may be obtained at the office or in this 
meeting room. Cards should be signed legibly, and, after all 
blanks are filled, should be returned promptly. 

Members and delegates are requested to register as soon as 
convenient after arrival. Daily lijsts of those in attendance will 
be printed for distribution at the meeting, and the last revision 
thereof will be included in the Report of the Proceedings. 

A separate register of the members of the Judicial Section will 
be kept in the Secretar}''8 office. Palace Hotel, and members of that 
Section are requested to register their names and addresses imme- 
diately upon arrival. 

Copies of the Constitution and By-Laws, program of 1922 meet- 
ing, lists of officers and committees, copies of committee reports. 
Canons of Ethics and other literature of the Association can be 
had at the Secretaryfs office in Rooms A and B of the Palace 
Hotel. Upon request at Secretary's office, stenographic service 
will be supplied. 

Pigeonhole furniture has been provided in the Secretary's 
office for mail addressed to members in care of the American Bar 
Association; members will please inquire periodically for mail, 
message and telegrams. 

Application blanks and information concerning the status of 
applicants, as well as all information concerning membership, 
may be obtained at the Headquarters of the Association. 

The Secretary endeavors to keep the street address of each 
member, and prompt notification of changes is requested. 
f Respectfully submitted, 

W. Thomas Kbmp, Secretary. 



* 



TREASURER'S REPORT 

YEAR ENDING JULY 26, 1922. 
Summary of Membership Roll. 

Membership August 16, 1921 14,111 

New members subject to 1922 dues 1,706 

New members subject to 1923 dues 1,783 

Reinstated during year 31 

3,520 

17,631 

Deaths 231 

Resignations 94 

Dropped 336 

661 

Membership July 26, 1922 16,970 

Membesshif Dues to be Accounted For: 

AugiLst 16, 1921 — Memhers: 

Paid dues for 1922 in advance 1,640 @ $6 each $9^840.00 

Paid dues for .1923 in advance 1 6.00 

Owing dues for 1922 12,471 74326.00 

Owing dues for 1919 5 30.00 

Owing dues for 1920 275 1,650.00 

Owing dues for 1921 1,053 6,318.00 

New members added during year 1921-1922 

subject to 1922 dues, Listo 154-159, incl. . 1,706 10,236.00 
New members added subject to 1923 dues, 

Lists 160-173, incl 1,783 10,698.00 

Reinstated owing 1915 dues 1 6.00 

Reinstated owing 1920 dues 9 54.00 

Reinstated owing 1921 dues 16 96.00 

Reinstated owing 1922 dues 25 150.00 

Reinstated owing 1923 dues 2 ___ 12.00 

18.987 $113,922.00 
Members (distinguished from new members 
added) who paid 1923 dues this year in 

advance 35 

35' 210.00 

19,022 $114,132.00 
Accounted For: 

Paid 1922 dues in advance 1,640 $9,840.00 

Paid 1923 dues in advance 1 6.00 

$9,846.00 
Dues paid during year 1921-1922 : 

Paid 1915 dues 1 $6.00 

Paid 1920 dues 92 552.00 

Paid 1921 dues 561 3,366.00 

Paid 1922 dues 12,435 74,610.00 

Paid 1923 dues 1,216 7,296.00 

Total dues paid year ending 85330.00 

July 26, 1922 14^05 

(106) 



treasureb's report. 



107 



Deaths owing 1920 dues 3 

Deaths owing 1921 dues 10 

Deaths owing 1022 dues 211 

Resignations owing 1921 dues.. 4 

Resignations owing 1922 dues.. 30 

Dropped owing 1919 dues 4 

Dropped owing 1920 dues 180 

Dropped owing 1921 dues 303 

Dropped owing 1922 dues 335 

Dropped owing 1923 dues 1 

Exempted for 1919 dues 1 

Exempted for 1920 dues 9 

Exempted for 1921 dues 8 

Exempted for 1922 dues 4 

Permanent exemptions (1922).. 2 

Members owing 1921 dues 177 

Members owing 1922 dues 1,179 

Members (new) owing 1923 dues. 002 
Member reinstated owing 1923 

dues, but not yet paid for. . . 1 

19^^ 
Dr. 



$18.00 
90.00 

i;2eo.oo 

24.00 

216.00 

24.00 

1,080.00 

1318.00 

2,010.00 

0.00 

0.00 

54.00 

48.00 

24.00 

12.00 

1,0@.00 

7,074XK) 

3,612j00 



OjOO $114,132j00 
$114,132.00 



To cash on hand at date of last report 

To cash received from members for subscriptions to annual 

dinner at Cincinnati 

To cash received from subscriptions to American Bab Aiaso- 

ciATioN Journal 

To cash received from sale of Amkbican Bab Association 

Journal 

To cash received from advertisements in the American Bab 

Association Journal 

To cash received from sale of copies of annual reports of the 

Association 

To cash received from sale of membership lists 

To cash received interest on funds deposited in savings banks. 
To cash received interest on funds invested in railroad bonds. . 
To cash received interest on funds invested in Liberty Loan 

bonds 

To amount refunded by (Dontinental Memorial Hall rent for 

Conference at Washington of Bar Association Delegates 

on Legal Education 

To amoimt refunded by former Membership Committee 

To amount refunded by Secretary for postage on 1921 annual 

meeting Committee Reports 

To cash received for sale of copies of proceedings of (Don- 

ference of Bar Association Delegate on Legal Education. . 

To cash borrowed money 

To cash received dues of members $6 each : 

For 1919 1 SOjOO 

1920 92 562i» 



$12,766.48 

4;i56.00 

581.76 

17752 

5,260.09 

111.50 
26.00 

2sn 

712.50 
637^ 



115i»5 
4.65 

54.12 

100.00 
10,000.00 



For 

For 1921 561 3,366X)0 

For 1922 12,435 74^10i)0 

For 1923 1,216 7,296.00 

14^ 

Total receipts $120336j94 



853ao.oo 



108 AMEBICAN BAB ASSOCIATION. 



- Summary of Disbursements, August 16i 1921 to July 26» 1922, 

Inclusive. 

Expenses of annual meeting 1921 $1,653.40 

Expenses of annual meeting 1922 672.76 

Expenses of annual dinner 1921 4322.00 

Stenographer reporting annual meeting 1921 1,658.18 

Hotel expenses and entertainment of guests at annual 

meeting 1921 552.62 

$8,768.96 

Annual report: 

Printing $15396.45 

Shipping 2^9.78 

17,96623 

American Bar Association Journal: 

Printing monthly issues of Journal (11 months) .$18,61331 
Shipping expenses, sorting labels by states, 

pasting wrappers, labels, etc ^. . . 1336.01 

Miscellaneous printing for wrappers, shipping 

labels, etc 14733 

Printing index Vol. 7 19534 

Salary 4,900.00 

Clerk hire 1,686.00 

Rent 870.00 

Traveling expenses 90.16 

Payment of assistants in editorial work 83.77 

Extra postage 6.42 

For office expense account during year * 2,272.78 

$30,199.12 

Expenses of Executive Committee 2,606.54 

Amount of appropriations expended by committees. (See 

Schedule " A '^ hereto attached) 20,984.90 

Addressograph supplies and repairs 148.06 

Furniture and equipment 245.70 

Books and periodicals 20.60 

Miscellaneous printing 63S7.40 

Process letters and typewriting 286.68 

Stamps, stamped envelopes, postal cards and parcel post 2,736.43 

Stationery and supplies 172.41 

Sundry expenses 17633 

Telegraph and cable , 254.71 

Telephone tolls 19831 

Express and freight 132.62 

Rent of rooms in Maryland Trust Building, Baltimore, Md.. . . 480.00 

Rent of storage room in Baltimore, Md : 33.(X) 

Rent of rooms in Spencer Trask Building, Albany, N. Y 678.74 

President's expenses 1921 7.44 

Secretary's traveling expenses for self and assistants 33135 

Treasurer's traveling expenses 926.45 

Secretary's office salary account 5,000.00 

Treasurer's office salary account 5,000.00 

Treasurer's salary 5,000.00 

Borrowed money repaijd 10,000.00 

Interest on borrowed money 9034 

Total disbursements $11731331 

Cash on Hand. 

Total receipts $120,636.94 

Total disbursements 117313.81 

Cash on hand July 26, 1922 $2323.13 

* This item includes $1368.90, postage on eleven iasues of the Joxtrnal, 
September, 1921, to July^ 1922, inclusive. 



tbsasubeb's bepobt. 109 

Bank Dbposits and Cash on Hand. 

Funds deposited in savings banks 163.17 

Funds deposited in Albany Trust Co., checking 

account 1 2,691^ 

Cash on hand in Treasurer's office 68.67 



S2,823.13 



FvNps Invested. 

10 No. Pac. R. R. Priw Lien 4's $9,637 JW 

5 Pa. R. R. Consolidated 4i's 5,356^ 

5 111. Central R. R. 4'8 bought at 91i 4^75.00 

10 $1,000 U. 8. Government bonds (4i% Second 

Liberty Loan) 10,000.00 

5 tlfiOO U. 8. Government bonds (4i% Third Liberty 

Loan 5,000.00 

$34.568.75 

Total cash on hand and funds invested $37^1.88 

8cHBDnij» "A." 

AMOUNTS AFPROPBIATIID TO AND EXPENDED BT OOMMITrBBS. 

Appropriated 

/ " * 

lMD-1981 102M928 Oommittce on Expended 

250X)0 250.00 Comparative Law Section 00.00 

500.00 ' 500.00 Section of Criminal Law $345.00 

IfiOOJOO 4.250.00 Section Legal Education 3,632.21 

250.00 400XK> Judicial Section 224.47 

150.00 150.00 Public Utilities Section 40.83 

1,250.00 3,000.00 Section Conference Bar Association Dele- 
gates 3,425.16 

200.00 250.00 Patent Law Section 315.71 

OOiX) 200.00 Admiralty and Maritime Law 00.00 

00.00 250.00 Legal Aid 36^ 

600.00 2,000.00 Commerce, Trade and Commercial Law.. 1,685,67 

300i)0 500.00 Professional Ethics and Grievances 339.42 

OOXX) 750.00 Internal Revenue and its means for 

Collection 235.12 

400.00 400.00 Insurance Law 00.00 

100.00 100.00 International Law 00.00 

250.00 250X)0 Uniform Judicial Procedure 107.40 

1,400.00 l/)00.00 Jurisprudence and Law Reform 663.38 

00.00 1,000.00 Law Enforcement 1,198.54 

00.00 500.00 Monument to Judge Chase 240.00 

500.00 00.00 Legislative Drafting 00.00 

3,000XK) 00.00 Membership: 

Lucien Hurfi Alexander, Chairman 30.00 

00.00 3,000.00 Frederick E. Wadhams, Chairman.... 4^35.39 

00.00 1,000.00 Judicial Ethics OO.QQ 

250.00 00.00 Change of Date of Presidential Inaugura- 
tion 00.00 

IjmXJO 1,600.00 PubUcity U1L31 

450.00 250.00 Classification and Restatement of the Law 150.00 

500.00 250.00 Noteworthy changes in Statute Law 00.00 

00.00 IpOOOXX) Representatives of A. B. A. to Conference 

Bar Delegates 635.62 

2,500.00 4,500.00 Commissioners on Uniform State Laws. . . 1,500.00 

350XK) 350jOO Law of Aviation 12 S3I 

Total $20,984.90 

Fbedebiok E. Wadhams, 

Treasurer. 



REPOUT 

OF THB 

EXECUTIVE COMMITTEE 

San Pbanoisoo, Cal., August 9, 1922. 
To the American Boar AssodcUion: 

The Executive Committee respectfully reports that under 
Article III, Section "d/* of the Confititution providing for 
election of members between meetings of the Association, the 
committee has elected 3003 members of the Association, upon 
nomination by a majority of the Vice-President and Iiocal 
Coimcil of the respective states. 

The Executive Committee has also, by virtue of authority con- 
ferred upon it by Article III of the Constitution, elected to hono- 
rary membership. Sir John A. Simon of London, England, and 
Dr. Sokuichiro Masujima, of Tokyo, Japaa. 

The Executive Committee met at Tampa, Florida, January 9, 
10 and 11, 1922. Many matters of detail in the work of the 
Association were brought before, and passed upon by the com- 
mittee, as more fully appears from the minutes of these meetings. 

The committee has kept in close touch with the Board of 
Editors of the American Bak Association Journal, now com- 
pleting its second year as a monthly periodical. In September 
and January, the committee conferred personally with the Board 
of Editors of the Journal. The committee at the beginning of 
the current year, upon request of the Chairman of the Board of 
Editors of the Journal, placed at the disposal of the board an 
allowance not exceeding $40,000, for the year ending August, 
1922. The board reports regularly to the committee concerning 
receipts and disbursements. The expense of publishing the 
Journal for the year has amounted to $30,531.20, whereof, 
$6,178.91 has been repaid by advertising and subscriptions mak- 
ing the net expense $24,352.29, or an average net expense of 
$2029.35 per month. 

(110) 



RBPORT OF EXSCUTIYB COMMITTEB. Ill 

The committee appropriated the sum of $5000 to Frederick E. 
Wadhams in recognition of his valued and continued service to 
the American Bar Association for the past twenty years. 

The committee passed resolutions favoring certain proposed 
legislation pending in Congress and authorized the President 
to take appropriate steps in support thereof^ as follows : 

1. Senate Bill No. 2433, providing for an appointment of 
18 additional federal judges. 

2. Senate Bill No. 2870 providing for uniformity of procedure 
in practice in federal courts. 

The committee approved the list of General Council, for the 
separate jurisdiction of the Philippine Islands. The committee 
invited the members of the American Bar Association resident in 
China to hold a meeting and elect General Council, Vice-Presi- 
dent and Local Council from that jurisdiction under the name of 
the American Bar Assodation in China. 

The committee ha^ received from Dr. R. Masujima of Tokyo, 
Japan, a communication addressed to the American Bar Associa- 
tion inviting this Association to join the International Bar 
Association with headquarters at Tokyo. The committee has 
been forced to decline this invitation, because under the Consti- 
tution of this Association, its activities and powers are limited to 
the United States of America. 

Under the authority of the committee, the President has ap- 
pointed the following special committees : 

1. Committee on Coordination of Work of Sections and Com- 
mittees, consisting of Messrs. John B. Corliss, Thomas W. Shelton, 
C. A. Severance and George B. Young. The report of this 
special conunittee is herewith attached as part hereof. 

2. Committee on Marking the Grave of Chief Justice Chase, 
composed of Messrs. Selden P. Spencer, Andrew Squire and Guy 
W. Mellon. This committee has selected a suitable monument, 
cQntracted for its erection and collected the sum of $4000 to 
defray the expense thereof. 

3. Committee on Uniformity of Size of Records and Briefs 
consisting of Messrs. Thomas W. Shelton and Thomas C. 
McGlellan. 



112 AMEBIOAN BAB ASSOOIATIOK. 

4. Committee on Defining Scope and Activities of Standing 
Committee on ProfesBional Ethics and Grievances consisting of 
Messrs. Thomas C. McClellan^ John T. Bichards and Thomas 
Francis Howe. 

5. Committee on Judicial Ethics consisting of Chief Justice 
Taft^ Chief Justice Leslie C. Cornish of Maine, Chief Justice 
Robert von Moschzisker of Pennsylvania, and Messrs. George 
Sutherland and Charles A. Boston. This committee has held 
meetings and the matter is still under consideration. 

6. Committee on Promotion of American Ideals composed of 
Messrs. Martin J. Wade, Edgar B. Tolman, Walter George Smith, 
R. E. L. Saner and Andrew A. Bruce. The report of this com- 
mittee will be submitted at a later session. 

7. Committee on Index to Legal Periodicals composed of 
Messrs. George B. Young, W. 0. Hart and Frederick E. Wadhams. 

8. Committee on Internal Revenue Law and Its Means of Col- 
lection, consisting of Messrs. Charles Henry Butler, Murray M. 
Shoemaker, William H. FoUand, George M. Morris, Benjamin 
W. Kernan. The report of this committee will be submitted at 
a later session. 

9. Committee on Removal of Government Liens on Real Estate 
consisting of Messrs. John T. Richards, Chester I. Long and 
John A. Chambliss. This committee still has the matter under 
consideration. 

The Executive Committee invited the International Bar Asso- 
ciation and the Canadian Bar Association to send one or more 
delegates to attend the annual meeting of the Association. 

The President appointed the following delegates on behalf of 
the Association, to attend the meetings indicated: 

Henry W. Anderson and Silas H. Strawn to attend the meeting 
of the American Academy of Political and Social Science in 
Philadelphia on May 12 and 13, 1922. 

Henry St. George Tucker to attend the William and Mary 
College celebration. 

John W. Davis to attend the meeting of the Canadian Bar 
Association in Vancouver August 16, 17 and 18, 1922. 

The committee further/ reports that, in accordance with By- 
Laws X and XII, appropriations were made for the use of the 



REPOBT OF EXSOUTIYB COMMITTEE. 113 

respective committees^ sections^ etc.^ not exceeding the following 
amounts : 

SECTIONS. 

AmouDts 

L^al Education $4^50.00 

Conference of Bar Association Delegates 3,000.00 

Commissioners on Uniform State Laws 4,500.00 

Judicial Section 400.00 

Patent, Trade-Mark and Copyright Law 250.00 

Comparative Law Bureau 250.00 

Pubhc Utility Law 150.00 

Criminal Law 600.00 

COMMITTEES. 

Commerce, Trade and Commercial Law 2,000.00 

International Law 100.00 

Insurance Law 400.00 

Jurisprudence and Law Reform 1,000.00 

Professional Ethics and Grievances 500.00 

Admirality and Maritime Law 200.00 

Publicity 1,500.00 

Noteworthv Changes in Statute Law 250.00 

Membership 3,000.00 

Uniform Judicial Procedure 250.00 

Classification and Restatement of the Law 250.00 

Law of Aeronautics 350.00 

Legal Aid 250.00 

Law Enforcement 1,000.00 

Marking Grave of Chief Justice Cha% 500.00 

Representatives of American Bar Association 1,000.00 

Internal Revenue and its Means of Collection. . . . 750.00 

Judicial Ethics 1,000.00 

Total $27,600jOO 

Bespectfully submitted, 

CoRDBNio A. Severance, 
Fbederigk E. Wabhams, 
Hugh H. Brown, 
John B. Corliss, 
John T. Richards, 
Thomas W. Blackburn, 
William Brosmith, 
^ S. E. Ellsworth, 

Thomas W. Shelton, 
" W. Thomas Kemp. 



MEMBERS AND DELEGATES REGISTERED 

AT THE 

FORTY-FIFTH ANNUAL MEETING 



1922. 



CANADA. 

ADglln, Justice, Ottawa. 
Baxter, John B. If., St. John. 
Daviaon, Geoxge Hark, Vancouver. 
Lockyer, Arthur Leonard, Vancouver. 
Martin, Hon. J. E., Montreal, Quebec. 
Surveyer, E. Fabre, Montreal. 
Taylor, S. S., Vancouver. 

FRANOE. 
Aubepin, Henry, Paria. 

JAPAN. 

Hanoaka, Toshlo, Tokya 
Masujima, R., Tokyo. 

ALABAMA. 

Acker, William P., Anniston. 
Oabanisa, E. H., Birmingham. 
Cooper, Lawrence, Huntsville. 
Dixon, J. K., Talladega. 
Nelson, Geo. A., Decatur. 

ARIZONA. 

Olark, E. A., Phoenix. 
OoUina, Huber A., Yuma. 
Oraig, J. Early, Phoenix. 
Curley, Frank E., Tucson. 
Davis, Robert M., Tucson. 
Favour, A. H., Prescott. 
OUroore, W. O., Dotiglas. 
Oung'l, John C, Willoox. 
Hartman, Francis M., Tucson. 
Jayne, A. A., Oasa Grande. 
Knapp, 0. T., Bisbee. 
Lamson, Richard, Prescott. 
Lavin, James P., Phoenix. 
Marka, Bamett B., Phoenix. 
Mathews, Olifton, Globe. 
Norris, Thomas G., P rescott 
Pickett, Harry E., Douglas. 
Stahl, Floyd M., Phoenix. 
Sullivan, John L., Prescott. 
WilklDBon, H. B., Phoenix. 
Wilson, a B., Flagstaff. 
Winsett, A. L, Tucson. 



ARKANSAS. 

Haunter, J. H., Little Rock. 
Mann, S. H., Forrest City. 
Pace, Frank, Little Rock. 

CALIFORNIA. 

Abbott, Wm. M., San Francisco. 
Ach, Heniy; San Francisco. 
Ackerman, Lloyd S., San Francisco. 
Adams, Anette Abbott, San Francisco. 
Adams, Charles Albert, San Francisco. 
Adams, William F., Los Angeles. 
Agnew, Albert C, San Francisco. 
Allan, R. E., San Francisco. 
Allan, Thos. A., San Francisca 
Allard, Joseph A. Jr., Pomona. 
Altman, John C, San Frandsoo. 
Ames, Alden, San Frandsoo. 
Anderson, Clarendon W., Santa Rosa. 
Anderson, William H., Loa Angeles. 
Andrews, A. V., Los Angeles. 
Andrews, William Samuel, San Francisco. 
Angellotti, F. M., San Francisco. 
Appel, Cyril, San Frandsco. 
Arendt, Margaret, San Francisco. 
Armstrong, £. H., Grass Valley. 
Armstrong, R. M. J., San Frandsco. 
Ashbum, Allen W., Los Angeles. 
Ashley, A. H., Stockton. 
Atwood, C. G., San Franciaca 
Austin, Frank B., San Francisco. 
Aynesworth, G. L., Fresno. 
Bailey, A. G., Woodland. 
Barber, L. N., Fresna 
Barber, Oscar T., San Francisco. 
Barcroft, Joseph, Madera. 
Bardin, Judge J. A., Salinas. 
Barendt, Arthur H., San Francisco. 
Barrett, R. M., Santa Rosa. 
Barrowa, R. K., San Francisco. 
Barrows, W. H., San Francisco 
Baylees, W. S., San Francisco. 
Beardsley, Charles A., Oakland. 
Beckett, O. Tucker, San Francisco. 
Becsey, Roland, San Frandsco. 
Beebe, George, Los Angeles. 
Beedy, Louis S., San Francisco. 



(114) 



MEMBERS AND DELEGATES BE0I8TEBED. 



115 



' B«ll, Golden W., San FranciRCO. 
Bennett, Eugene D.,*San Francisco. 
BeiiB^rot, P. A., San Francisco. 
Berry, Fred. L., San Francisco. 
Bickder, W. S., Los Angeles. 
Bien, Joeeph E., San Francisco. 
Billings, Addie K., Oalistoga. 
Bingham, Joseph W., Stanford University. 
Binnard, Morris, San Diego. 
Bischoff, Heniy J., San Diego. 
Black, A. P., San Francisco. 
Blakem&n, T. Z., San Francisco. 
Blanckenbuig, G. B., Berkeley. 
Bledsoe, Benjamin P., Los Angeles. 
Bluzome, Joseph P., San Francisco. 
Boland, P. Eldred, San Francisco. 
Bolton, Arthur W., San Francisco. 
Booth, Henley O., Berkeley. 
Bordwell, Walter, Loa Angeles. 
Borland, Robert H., San Francisco. 
Bosley, Wm. B., San Franciaco. 
Boyken, A. W., San Francisco. 
Boynton, Albert E., San Francisco. 
Boynton, Chas. 0., San Francisco. 
BradlQr, Christopher M., San Francisco. 
Brand, Clyde H., Sacramento. 
Brandenatein, H. U., San Francisco. 
Braun, Walter S., San Francisco. 
Breckenridge, James J., San Diego. 
Brennan, Robert, Lot Angeles. 
Bridgford, Eugene A., San Francisco. 
Britt, E. W., Los Angeles. 
Brittain, P. S., San Francisco. 
Brobeck, W. L, San Francisco. 
Bronson, Roy jL, San Francisca 
Brookman, Douglas, San Francisco. 
Brouillet, A. W., San Francisco. 
Brown, William B., Los Angeles. 
Brown, Joseph A., San Francisco. 
Brun, S. J., San Francisco. 
Bryan, Wm. Jennings, Jr., Los Angeles. 
Buck, George P., Stockton. 
Buckley, Christopher A., San Francisco. 
Bull, Franklin P., San Francisco. 
Bullock. Georgia P., Los Angeles. 
Burke, Andrew P., San Francisco. 
Burnett, W. S., San Francisco. 
Bush, Gea B., Sacramento. 
Butler, J. W. S., Sacramento. 
Butler, M. B., Pasadena. 
Byington, Lewia P., San Francisco. 
Cabaniss, Judge George H., San Franolsco. 
Gahill, Lawrence If., San Mateo. 
Oalfee. Tsar N., Richmond. 
Campbell, Donald Torke, San Francisco. 
Canfield, Robert B., Santa Barbara. 
Carline, A. M. Jr., Santa Rosa. 
Qarlaon, Arthur J., Modesto. 



Carr. Francis, Redding. 
Carr, Sterling, San Francisco. 
Garter, Royle A., San Francisco. 
Gary, W. P., San Diego. 
Cashman, W. E., San Francisco. 
Castberg, Biame, Los Angele& 
Cathcart, A. M., Palo Alto. 
Caulfleld, C. Harold, San Francisca 
Chamberlain, R. H. Jr., Oakland. 
Chamberlin, Heibert, San Francisco. 
Chambers, William, Loa Angelea. 
Chandler, A. E., San FYandaeo. 
Chandler, Jeff. P., Los Angeles. 
Chapman, Edgar C, San Francisco. 
Chase, Charles W., Los Angeles. 
Chenoweth, Orr M., Redding. 
Ghickering, Allen L., San Francisco. 
Childs, Enid, San Francisco. 
Church, Lincoln S., Oakland. 
Clark, Herbert W., San Francisco. 
Clarke, Robert M., Loa Angeles. 
Clayaon, Walter S., Corona. 
Clock, Ralph H., Long Beach. 
Cluff, Alfred, T., San Francisco. 
Coe, Arthur P., Los Angelea. 
Coffey, Edward I., San Francisca 
Coffey, Jeremiah Y., San Francisco. 
Coghlan, John P., San Francisca 
Cohen, Louia, Atascadero. 
Colby, Wm. E., San Francisco. 
Cole, Cornelius, Los Angeles. 
Cole, Franklin J., El Centro. 
Coleberd, J. W., South San Francisco. 
Collins, Victor F«rd, Los Angles. 
Colston, Jamea E., San Francisco. 
Connolly, George A., San Francisco. 
Conrey, N. P., Los Angeles. 
Cooley, A. E., San Francisco. 
Corbet, Burke, San Francisco. 
Cormac, T. E. K., San Francisco. 
Cornish, Frank V., Berkeley. 
Cosgrove, T. B., Los Angeles. 
Countryman, Robert H., San Francisco. 
Orabbe, John Hammond, San Francisco. 
Craig, Hugh H., Riverside. 
Crane, A. Bathurst, San Francisco. 
Creed, Wigginton E., San Francisco. 
Orider, Joe, Jr., Los Angeles'. 
Crocker, Chas. H., Sacramento. 
Crosby, Peter J., Hayward. 
Cross, J. M., Modesto. 
Cross, R. H., San Francisco. 
Crothers, Qeo. E., San Francisco. 
Crothers, Thomas G., San Francisco. 
Crow, S. E., Santa Barbara. 
Crump, Guy Richards, Los Angeles. 
Cullinan, Eustace, Ban Francisco. 
Cnlver, Richard J. 0., Los Angeles. 



116 



AMERICAN BAR ASSOCIATION. 



Cunha, Edward A., San FrancMOO. 
Curran, John M., Santa Barbara. 
Curtis, J. W., San Bernardino. 
Cushln^, Charles S., San Francisco. 
Cushing, 0. K., San Francisco. 
Outten, Charles P., San Francisco. 
Cuttrell, C. J., Yreka. 
Dall, Cornelius O., San Francisco. 
Daney, Eugene, San Diego. 
Darlington, Barton, Los Angeles. 
Davis, W. Jefferson, San Di^^. 
Davison, C. W., San Jose. 
Deahl, John L., San Francisco. 
Dearing, Milton M., Fresno, 
de Bettencourt, Jose L., San Francisco. 
Deering, Frank P., San Francisco. 
Deering, James H., San Francitoo. 
DeForest, Joseph O., San Francisco. 
De Oarmo, G. C, Los Angeles. 
Dehm, W. H., Los Angeles. 
Dehy, Wm. D., Independence. 
De Lap, T. H., Richmond. 
De Ligne, A. A, San Francisca 
Denman, William, San Francisco. 
Dennett, L. L., Modesto. 
Derby, S. Basket, San Franci«co. 
Demham, Monte. A., San Francisco. 
De Roy, Irvin E., San Francisco. 
Dessouslavy, A. P., San Francisco. 
Devlin, Frank A., San Francisco. 
Devlin, Wm. H., Sacramento. 
Devoto, Anthony S., San Francisco. 
Dibblee, Albert J., San Francisco. 
Dinkelspiel; Heniy O. W.* San Francisco. 
Docker, P. W., Fresno. 
Dockweiler, Isidore B., Los AngelsR. 
Dockweiler, Thos. A. J., Los Angeles. 
Dole, Edward J., Petaluma. 
Donahue, William H., Oakland. 
Dooling, Maurice T., Jr., San Frandsoo. 
Dom, Winfleld, San Francisco. 
Dorr, Frederick W., San Francisco. 
Dorsey, J. W., San Francisco. 
Douglas, J. Franklin, San Francisco. 
Dow, W. A., San Francisco. 
Downing, William S., San Francisco. 
Doyle, Clyde, Long Beach. 
Dreher, Fred L., San Francisco. 
Drew, A. M., Fresna 
Drobisch, Walter E., San Frandaco. 
Drum, John S., San Francisco. 
Dunlap, Boutwell, San Francisco. 
Dunne, Frank H., San Francisco. 
Dunn, Jesse J., Oakland. 
Dwyer, J. J., San Francisco. 
Eells, Charles P., San Francisco. 
Ehrman, Sidney M., San Francisco. 
Eickhoff, Henry, San Francisco. 



Ellison, Judge John P., Red BlulT. 
Ellsworth, Oliver, San- Francisco. 
Emmons, George E., Ross. 
Erskine, Herbert W., San Francisco. 
Erskine, Morse, San Franciioo. 
Estudillo, Miguel, Riverside. 
Evans, Lyman, Riverside. 
Evans, Perry, San Franciaco. 
Eversole, Keith C, Ukiah. 
Fallon, Joseph P., San Francisco. 
Farmer, Milton T., San Francisco. 
Faulconer, Mrs. Oda, Los Angeles. 
Finch, Fabius T., San Francisco. 
Finch, Wilbur D., Los Angeles. 
Fisher, Eugene I., Long Beach. 
Fitch, J. R., Fresna 
Fitzgerald, R. M., Oakland. 
Fletcher, Kimball, Los Angeles. 
Foerster, Roland C, San Frandsco. 
Foltz, Clara Shortridge, Los Angeles. 
Ford, Tirey L., San Frandsco. 
Ford, W. J., Los Angeles. 
Foulds, E. J., San Frandsoo. 
Fourtner, August L., San Francisco. 
Fratessa, Paul F., San Frandaco. 
Freeman, G. R., Riverside. 
Freitas, Lawrence T., Stockton. 
Frohman, Isaac, San Francisco. 
Frost, C. A S., San Frandsco. 
Fulton, R. M., Los Angeles. 
Funke, H. W., Sacramento. 
Geibel, Martin E., Los Angeles. 
Gerstle, Mark I., San Frandaca 
Gherini, Ambrose, San Frandsco. 
Gibbs, George A., PasadefUu 
Gibson, hving D., Sacramento. 
Gifford, F. W., Los Angeles. 
Goldberg, John J., San Francisco. 
Goodell, C. J., San Frandsoo. 
Goodfellow, Hugh, San Francisco. 
Goodman, Louis E., San Frandsoo. 
Goodspeed, Richard C, Lot Angeles. 
Gordon, Hugh, San Francisco. 
Gordon, Hugh T., Loa Angeles. 
Gorrill, William H., San Frandaco. 
Goebey, P. F., San Jose. 
Graham, Wm. S., San Frandsco. 
Granger. Kyle G., Los Angeles. 
Grant, William, San Francisco. 
Gray, Chas. A., San Frandsca 
Gray, Gordon, San Diego. 
Gray, R. S., San Frandsoo. 
Gregoiy. H. D., Oroville. 
Gregory, T. T. C, San Francisco. 
Griffith, R. Williams, San Francisco. 
Griffith, W. G., Santa Barbara. 
Griffiths, L. P., San Francisco. 
Qroene, John F., Daly City. 



inSMBBBS AND DBLBQATKS BSGI8TBBED. 



117 



Outhrle, 8. W., Lob Angelea. 

Haber, Joseph Jr., San FranclBco. 

Ha6k«tty O. Nebon, San Franciaco. 

Hadaell, Dan, San Francisco. 

Bahn, BenJ. W.» Paiadena. 

Haluif Edwin F., Paaadena. 

Haines, A., San Diego. 

Haines, Hartin L., Los Angeles. 

Hains, T. W., Oakland. 

Hale, Theodore, San Francisco. 

Hall, Frank, San FrandBoo. 

Hanbley, F. J., San Jose. 

Hamm, Lw S., San Francisco. 

Hammon, Percy Y., Loa Angeles. 

Hanley, James M., San Francisco. 

Hanloo, Charles F., San Francisco. 

Hannum, O. S., Richmond. 

HardUig, R. T., San Francisco. 

Hardy* Ckrlos S., Los Angeles. 

Harris, A. P., Fresno. 

Harris, IL K., Fresno. 

Harrison, Ifaurlce £., San Frandsco. 

Harrison, Ridiard O., San Frandsoo. 

Hart, John W., Los Angeles. 

HarvQr, F. N., Bakersfleld. 

Hatfield, V. Lw, Sacramento. 

Haven, Thomas E., Ban Francisco. 

Haven, Harold B., San Franciaoo. 

Hanson, Heniy, Fresno. 

Hayhurst, L. B., Fresno. 

Haalett, William Los Angeles. 

Healy, Timothy, San Francisco. 

Hean^, John W., Santa Barbara. 

Heller, E. S., San Francisco. 

Hengstler, Louis T., San Francisco. 

Henshall, Richard Percy, San Frandsoo. 

Herrington, B. A., Los Angeles. 

Herrington, George, San Francisco. 

Hettman, Walter E., San Francisco. 
Hess, W. T., San Francisco. 
Hewitt, Leslie R., Los Angeles. 
Heywood, John Oxithrle, San Francisco. 
Hill, Ohaffee E., San Frandsco. 
Hillyer, Ourtia, San Diego. 
Hinckley, Frank E., San Frandsca 
Hooker, J. W., Los Angeles. 
Hodghead, Beverly L., San Francisco. 
Hoge, J. Hampton, San Francisco. 

Hoefler, L. If., San Frandsco. 
Hohfeld, Edward, San Francisco. 
Hollxer, Harry A., Los Angelea 
Houghton, Edward T., San Frandsco. 

How, Jared, Ban Francisco. 
Hubbard, T. W., San Francisco. 
Hubbard, William P., San Francisco. 

Hoebner, F. O., Fresno. 

Hughes, Oharles T., San Frandsco. 

Humphrey, 0. F., Ban Franosoo. 



Humphreys, William Penn, San Fjrandsco. 
Hunsaker, Wm. J., Los Angeles. 
Hunt, William H., San Frandsco. 
Hunter, Ben S., Los Angeles. 
Hutchinson, Joseph K., San Frandsco. 
Hynes, W. H. L., Oakland. 
Irving. W. G., Rlvexslde 
Jacks, L. S., San Frandsco. 
Jackson, B. If., San Frandsco. 
Jacobs, Henry A., San Frandsco. 
James, Frank, Los Angeles. 
James, L. L. Jr., San Francisco. 
Jameson, Max. D., Porterville. 
Jennings, J. B., Modesto. 
Jensen, Oonstan, Los Angeles. 
Johnson, J. LeRoy, Stockton. 
Johnson, Lincoln V., San Frandsco. 
Jones, Qeorge L., Nevada City. 
Jones, Geo. W., Fresno. 
Jones, Herbert OL, San Jose. 
Jones, Madison Ralph, San FranciKo. 
Jones, Mattiflon B., Los Angeles. 
Jordan, Thomas O., San Frandsca 
Judkins, T. O., San Francisco. 
Kadlets, Los Angeles. 
Kapp, Geo. F., Long Beach. 
Kaufman, Helen, San Frandsco. 
Kauke, Frank, Fresno. 
Kaye, W. W., Bakersfleld. 
Keane, Augustin 0., Si^ Francisco. 
Keeler, P. E., Long Beach. 
Keesling, Francis V., San Frandsco. 
Eehoe, William, San Frandsoo. 
Kelly, James Raleigh, San Frandsco. 
Kelso, Ivan, Los Angeles. 
Kemp, John W., Los Angeles. 
Kennedy, Lawrence S., Redding. 
Kenney, Elizabeth L., Los Angeles. 
Kerrigan, Fiwik H., San Frandsoo. 
Keyes, Alexander D., San Frandsco. 
Kidd, A. M., Berkeley. 
Kimball, Rufus H., San Frandsco. 
King, Percy S., Napa. 
Kirfoy, Lewis, San Diego. 
Kirk, Joseph, San Frandsca 
Kirkbride, Charles N., San Mateo. 
Knight, E. D., San Frandsca 
Knight, Samuel, San Frandsca 
Koford, Joseph S., Oakland. 
Kollmyer, W. B., San Frandsco. 
Lady, William Ellis, Los Angeles. 
Lamson, J. S., San Francisco. 
Langdon, W. H., San Frandsco. 
Langhome, James P., San Frandsco. 
Lansburgh, S. Laa, San Frandsoo. 
Laughlin, Gail, San Frandsco. 
Lawlor, William, San Frandsco. 
LawsoD, Oord<», Los Angeles. 



118 



AMSaiOAN BAB ASSOCIATION. 



Lee» Bradner W., Los Angeles. 
Lee, Bradner Weill Jr., Los Angeles. 
Lee, Kenyon Farrar, Los Angeles. 
Leicester, J. F., San Francisco. 
Leitoh, Miss Oonstanoe, Lm Angeles. 
Lennon, Thos. J., San Francisco. 
Levinsky, Arthur L., Stockton. 
Lery, David L., San Francisco. 
Levy, Lawrence L., San Francisco. 
Lewis, John 11.^ San Francisco. 
Libby, Warren E., San Diego. 
Liechti, Arnold W., San Francisco. 
Lillick, Ira S., San Francisca 
Lindl^, Fred. E., San Diego. 
Lindsay, Oarl, Fresno. 
Lingenhelter, O. Homer, San Francisco. 
Linney, H. H., San Francisco. 
Loeb, Albert I., San Francisco. 
Loeb, Joeeph P., Los Angeles. 
Loewy, Walter, San Francisco. 
Long, Perqy Y., San Francisco. 
Lovell, Charles H., San Francisco. 
Luce, Edgar A., San Di^o. 
Lum, Burt F., San Francisco. 
Lyders, E., San Francisco. 
MacNeil, Sayre, Los Angeles. 
McAuliife, F. K., San Francisco. 
McCaughan, Geo. E., Long Beach. 
McCaughey, J. W., San Francisco. 
McCorkle, John ^., San Diego. 
McCormick, Paul J., Los Angeles. 
McCoy, A. M., Red BluiT. 
McCutchen, Edward J., San Francisco. 
McDaniel, Eugene P., Marysville. 
McDill, George W., Los Angeles. 
McEnerney, Garret W., San Francisco. 
Mclnioeh, Miles W., San Francisco. 
McKeon, Joseph B., San Francisco. 
McKevitt, Hugh K., San Francisco. 
McKinlQT, James W. Jr., Los Angeles. 
McKinstry, J. C, San Francisco. 
McLaughlin, C. £., Sacramento. 
McNab, Gavin, San Francisco. 
McNitt, Rollin L., Los Angeles. 
McNoble, George F., Stockton. 
McNuIty, Frederick, San Francisco. 
McNutt, Maxwell, San Francisco. 
McWhinney, C. C, Long Beach. 
McWllliams, R. L., San Francisco. 
Madison, Frank D., San Francisco. 
Magee, E. DeLoe, San Francisco. 
Maher, D. F., Watsonville. 
Mahon, K. S., Tuba City. 
Malcolm, Norman E., Palo Alto. 
Mann, Seth, San Frandsoo. 
Marrin, Paul S., San Francisco. 
Marshall, Humphrey, Los Angeles. 
Marshall, John W., San Francisco. 



Martin, George Miner, Los Angeles. 
May, Henry F., San Francisco. 
May, Prof. Samuel C, University of Cat. 
Mazuran, Marion J., San Francisco. 
Metteer, 0. F., Sacramento. 
Meyerstein, Joeeph O., San Francisco. 
Michelson, Albert, San Francisco. 
Miller, H. B. M., San Francisco. 
Miller, J. Paul, San Francisca 
Miller, John H., San Francisco. 
Miller, K. A., Los Angeles. 
Milverton, Frederick W., San Francisco. 
Mirow, William G., San Diego. 
Mitchell, Edward J., San Francisco. 
Molkenbuhr, S. W., San Francisco. 
Monroe, Charles, Los Angelesi 
Monroe, Henry E., San Francisco. 
Monteagle, Paige, San Francisco. 
Moore, Stanley, San Francisco. 
Moran, Edward F., San Francisco. 
Moran, Nathan, San Francisco. 
Morris, Chas. B., San Francisco. 
Morris, Leon E., San Francisco. 
Morrison, Fred W., Los Angelesw 
Morrow, Wm. W., San Francisco. 
Mossholder, W. J., San Diego. 
Mott, John G., Los Angeles. 
Moulthrop, J. R., San Francisco. 
Mueller, Oscar O., Los Angeles. .^ 

Myers, I«ouis W., Los Angeles. 
Nathan, Milton A., San Francisco. 
Newby, Nathan, Los Angeles. 
Newhouse, Hugo D., San Francisco. 
Newmark, Milton, San Francisco. 
Newlin, Gumey E., Loe Angeles. 
Neylan, John Francis, San Francisco. 
Noble, Col. Robert H., San Francisco. 
North, H. H., Berkeley. 
Oatman, O. H., San Ftancisco. 
O'Brien, J., San Francisco. 
O'Connor, J. Robert, Los Angeles. 
Oddie, Clarence M., San Francisco. 
O'Donnell, Joseph E., San Francisco. 
O'Donncll, William T., Fairfield. 
O'Duque, Gabriel, Los Angeles. 
Oliver, Boyd, San Francisco. 
Olney, Warren Jr., San Francisco. 
O'Neil, R. K., San Jose. 
Ong, Walter C, Pasadena. 
Ombaun, Casper, San Francisco. 
Otis, Edwin M., San Francisco. 
Owens, Madison T., Whittier. 
Pace, Troy, Los Angeles. 
Page, Benjamin E., Los Angeles. 
Pardee, J. A., Susanville. 
Pardee, J. E., Susanville. 
Parker, Robert S., Pasadena. 
Parker, S. R., Bridgeport. 



HBHBSRS AKD DELEGATES BE0I8TEEED. 



119 



Patton, OhM. L., San Francisco. 
Pawlicki, T. E., San Francisco. 
Peaira, H. A., Bakerafield. 
Peart, Hartley F., San Francisco. 
Pease, Robert IC., Los Angeles. 
Peck, Charles IL, Oakland. 
Peck, James Francis, San Francisco. 
Perkins, Thomas A., San Francisco. 
Peterson, Fred O., San Francisco. 
Pelree, L. E., San Jose. 
Pelzotto, Edgar D., San Francisco. 
Phillips, ICisB Ester B., San Francisco. 
Phleger, Herman B., San Francisco. 
Plcard, Albert, San Francisco. 
Pigott, John T., Sacramento. 
Pillsbuiy, H. D., San Franditco. 
Pillsbury, Warren H., San Francisco. 
Plunmier, J. A., Stockton. 
Plunkett, W. T., San Francisco. 
Porter, Frank !£., Los Angeles. 
Porter, Robert O., San Francisco. 
Postel, Waldo F., San Francisco. 
Potter, Charles F., Los Angeles. 
Powell, W. K., San Francisco. 
Pratt, Elinor D., San Francisco. 
Pratt, 0. C, Jr., San Francisco. 
Preston, H. L.; Ukiah. 
Preston, John W., San Francisco. 
Price. Frands, Santa Barbara. 
Prlchard, George A., Los Angeles. 
Prlngle, E. J., San Francisco. 
Piye, Benjamin E., Los Angeles. 
Pyle, E. C., Los Angeles. 
Quina, James G., Oakland. 
Ragbrnd, R. B., San Francisco. 
RedingtOD, Arthur H., San Francisco. 
Redman, L. A., San Francisco. 
Rendoo, C. P., Stockton. 
R^P7> Roy ^M I'M Ai^r^les. 
Reslenre, J. F., San Francisco. 
Retburg, Joseph D., San Francisco. 
Reynolds, Howard W., Los Angeles. 
Richards, David W., San Bernardino. 
Richardson, Robert W., Lor .\nge1es. 
Richter, Erwin E., San Francisco. 
Rickard, James B., Santa Barbara. 
Ridgway, Thos. C, Los Angeles. 
Riggins, darenoe N., Napa. 
Riley, Stanislaiw A., San Francisco. 
Ring, William 0. Jr., Madera. 
Rizford, E. H., San Francisco. 
Rizford, Halsey L., San Francisco. 
Robinson, E. C, Richmond. 
Robinson, Elmer O., San Francisco. 
Robinson, Thos. W., Los Angeles. 
Roche, Theo. J., San Francisco. 
Roefal, A. B., San Francisco. 
Rogers, Merle J., Ventura. 



Robe, CliiTord A., Los Angele& 
Rose, Frederick J., Chioo. 
Rose, Wm. F., San Francisco. 
Rosendalc, Chas. R., Salinas. 
Rosenfleld, Adolph B., Long Beach. 
Rosenshlne, Albert Ai, San Francisco. 
Ross, Hall O., Redwood City. 
Ross, Lee T., Redwood City. 
Rothchild, Walter, San Francisco. 
Rowan, John M., BakersAeld. 
Rowland, A. Lincoln, Pasadena. 
Runham, Frank C, Pasadena. 
Sample, E. P., San Diego. 
Sampsell, Paul Warren, Los Angeles. 
Samuels, Judge Oeoige, Oakland. 
Samuels, Marcus Lome, San Francisco. 
Sanderson, A. A., San Francisco. 
Sapiro, Milton D., San Francisco. 
Sargent, Geo. Clark, San Francisco. 
Sawyer, Harold M., San Francisco. 
Schauer, Fred H., Santa Barbara. 
Schapiro, Esmond, San Francisco. 
Schlesinger, Bert, San Francisco. 
Schlesinger, Mrs. Amanda, San Francisco. 
Schmulowitz, Nat, San Francisco. 
Schunck, Dorothea, San Francisco. 
Scott, James Walter, San Francisco. 
Scott, Joseph, Los Angeles. 
Scott, Russell, Salinas. 
Scott, Thomas, BakersAeld. 
Searls, Oarrdl, Nevada City. 
Searls, Robert M., San Francisco. 
Selby, John R., San Francisco. 
Shapiro, Leo. H., San Francisco. 
Sharpsteen, W. C, San Francisco. 
Shaw, Arvin B. Jr., Los Angeles. 
Shaw, A. E., San Francisco. 
Shaw, Luden, San Francisco. 
Shenk, John W., Los Angeles. 
Shepherd, Howard T., Los Angeles. 
Sherlock, Alva S., Concord. 
Sherman, J. P., San Francisco. 
Sherman, Roger, San Francisco. 
Short, John Douglas, San Frandsco. 
Shuey, darence A., San Frandsco. 
Shurtleff, Charles A., San Frandsco. 
Silva, Frank M., San Frandsco. 
Sinclair, John A., San Frandsco. 
Singer, W. Menzies, San Frandsco. 
Silverstein, Bernard, Oakland. 
Simmons, William M., San Frandsco. 
Simons, Seward A., Los Ange.es. 
Sinton, Edgar, San Frandsco. 
Skaife, Alfred C, San Frandsco. 
Skinner, Newton J., Lot Angdes. 
Slack, Charles W., San Frandsco. 
Slack, Walter, San Frandsco. 
Slosaon, Leonard B., Los Angeles. 



120 



AMEiaOAN BAB ASSOCIATION. 



8I08S, If. 0.» San Francisco. 
Smith, De Lanccy O., San Franclaco. 
Smith, Joel H., Selma. 
Smith, Wilbur R. Jr., San Francisco. 
Smith, Willard P., San Francisco. 
Smith, William H. Jr., San Francisco. 
Smith, Winfleld R., San Francisco. 
Soto, R. IC. F., Sao Francisco. 
Spence, Homer R., San Francisco. 
Spriffff, Patterson, San Diego. 
Squier, E. W., Santa Barbara. 
St. Sure, A. F., Oakland. 
Stammer, W. H., Fresno. 
Stanwood, Edward B., Marysville. 
Steinhart, Jesse H., San Francisco. 
Stevens, Henry J., Los Angeles. 
Stevens, Ifartin, San Francisco. 
Stevens, Samuel S., San Francisco. 
Stevick, Ouy LeRoy, San Francisco. 
Stickney, J. K. Jr., Los Angeles. 
Stickney, J. E. Jr.. San Diego. 
Stidger, 0. P., San Francisco. 
Stimson, Manball, Los Angeles. 
Stone, Byron F. Jr., San Francisca 
Stone, Leonard, Fort Bragg. 
Stoney, Oaillard, San Francisco. 
Stringham, Frank D., San Franciaca 
Strong, Charles A., San Fraodsoo. 
Strother, S. L., Fresno. 
Stuart, Z. B., Los Angeles. 
Sturtevant, Geo. A.| San Fnnciaoo. 
Sullivan, Jeremiah F., San Francisco. 
Sullivan, Matt I., San Francisco. 
Susman, Leo. H., San Francisca 
Sweet, Joe G., San Francisco. 
Tapacott, Jaa. R., Treka. 
Tasheira, Arthur O., Oakland. 
Taylor, E. E., Pasadena. 
Tharp, Lawrence, San Francisco. 
Thelen, Max, San Francisco. 
Theisen, S. Joseph, San Francisco. 
Thomas, F. F. Jr., San Francisco. 
Thomas, James M., San Francisco. 
Thomas, William, San Francisco. 
Thompson, Judge R. L., Santa Rosa. 
Thorns, C. L., Los Angeles. 
Ticknor, Harry M., Pasadena. 
Tordiiana, H. van O., San Francisco. 
Torregano, Ernest J., San Francisco. 
Towne, Percy £., San Francisco. 
Townsend, Chaa. E., San Francisco. 
Treadwell, E. F., San Francisca 
Treat, A. J., San Francisco. 
Treraont, Edwin J., San Francisco. 
Tribit, Ohas. H. Jr., Los Angeles. 
Trowbridge, Delger, San Francisco. 
Tupper, W. C, Frcana 
Turrentine, Lw N.» Esoondido. 



Tuttle, Obarles A., Fresno. 
Tyler, 0. H., Long Beach. 
Tyler, Mrs. Harriet P., San Francisco. 
Tyler, John F., Hayward. 
U'Ren, Milton T., San Francisco. 
Valentine, L. H., Los Angeles. 
Van Duyn, Owen K., San Francisco. 
Van Dyke, B. P., Sacramento. 
Van Fleet, Alan C, San Francisco. 
Van Fleet, Ransom Oar^, San Francisco. 
Van Yranken, Edward, Stockton. 
Van Wyck, Sidney Millechen, & Frandsoo. 
Van Wyck, Sidney M. Jr., San Francisco. 
Variel, Robert H. F., Jr., Loa Angeles. 
Varaum, George M., Berkeley. 
Vaughn, Orville R., San Franciaoa 
Waldo, George £., Pasadena. 
Wallace, Bradley L., San Francisco. 
Wallace, W. B., Visalia. 
Wallace, Gerald B., Stodcton. 
Walters, Byron J., San Diego. 
Walters, R. T., Los Angeles. 
Ward, Chandler P., Los Angeles. 
Ward, Shirley C, Loa Angeles. 
Warlow, Chester H., Fresno. 
Waste, William H., Berkeley. 
Watkinson, Cbas. E., Hanford. 
Watson, W. W., San Francisco. 
Watt, RoUa B., San Francisco. 
Webb, Arthur C, Los Angeles. 
Webb, Joseph J., San Francisco. 
Wehe, Frank R., San Francisco. 
Weil, A. L., San Frandsoo. 
Weinberger, Herman, San Francisco. 
Weinberger, Jacob, San Diego. 
Welch, J. R., San Jose. 
Westover, Myron, San Francisco. 
Weyl, Bertin A., Loa Angeles. 
Whalen, James D., San Frandsco. 
Wheeler, Charles S., San Francisco. 
White, Carlos G., Oakland. 
White, Chas. W., San Francisco. 
White, Earl D., Oakland. 
White, Herbert E., Sacramento. 
White, Thos. R., San Francisco. 
White, William E., San Francisco. 
Whiting, Randolph V., San Francisca 
Whitson, Robert, San Francisca 
Whittier, Clarke B., Stanford University. 
Whittle, Albert L., Oakland. 
Whittlesey, Geo. P., Pasadena. 
Wiel, Samuel C. San Francisco. 
Wilbur, Curtis D., San Frandsca 
Wilcox, Edwin A., San Jose. 
Williams, E. S., Los Angeles. 
Williams, Eugene D., Los Angeles. 
Willis, Frank R., Los Angeles. 
Wilson, Edgar H., San Francisco. 



ICBICBSBS AND DBLB0ATE8 BE0I8TEBED. 



121 



Wilson, Emmet H., Lob Angeles. 
Wilson, John RAlph, San Franciaco. 
Wilson, Mountford S., San Francisca 
Wittschen, T. P., Oakland. 
Wolfe, R. N., Pittsburg. 
Wolff, Harry E., San Francisco. 
Wood, Jdbn Perry, Pasadena. 
Woten, John W., San Francisco. 
Wretman, Niles E., San Joee. 
Wright, Alfred, Loe Angeles. 
Wright, Allen G., San Francisco. 
Wright, Austin T., San Francisco. 
Wright, Geo. T., San Francisco. 
Wright, H. M., San Francisco. 
Wright, Ralph H., Martinez. 
Wrii^t, R. M., San Jose. 
Wyckoff, H. O., Watsonville. 
Yale, Un. Margaret D., Burbank. 
York, Waldo M., Los Angeles. 
Young, Lyndol L., Los Angeles. 
Young, Milton K., Los Angeles. 

CX)LORADO. 

Allen, Geo. W., Denver. 

Brock, Chas. R., Denver. 

Oarr, Ralph, Antonito. 

Dillon, William, Oastle Rock. 

Ewing, John A., Denver. 

Fry, John H., Denver. 

Geijd>eek, J. B., Denver. 

Goudy, F. B., Denver. 

Hawley, Joseph W., Trinidad. 

Button, William E., Denver. 

Killian, James R., Denver. 

Lathrop, Mary F., Denver. 

O'Donnell, T. J., Denver. 

Rothrock, James H., Colorado Springs. 

Seeman, Bernard J., Denver. 

OONNEOnCUT. 

Avery, Christopher L., Groton. 
Beers, George E., New Haven. 
Brosmith, William, Hartford. 
Day, Edward W., Hartford. 
Peasley, Frederick M., Cheshire. 

DELAWARE. 

Laifey, J. P., Wilmington. 
Marvel, Joeiah, Wilmington. 

DISTRICT OF COLUMBIA. 

Ash, Robert, Washington. 
Brock, Charles E., Cleveland, O., ft Wash. 
Butler, Cbas. Henry, Washington. 
Byrne, John J., Washington. 
Carpenter, W. Clayton, Washington. 



Carusi, Charles P., Washington. 
Oaton, Harry B., Washington. 
Chamberlin, Justin Morrill, Washington. 
Oompton, Wilson, Washington. 
Ellis, Wade H., Washington. 
Freeberg, Harriet, Washington. 
Hagerman, James Jr., Washington. 
King, George A., Wadiington. 
Meyers, Ida M., Washington. 
Peacock, Jam^ Craig, Washington. 
Pike, Miss Katherine R., Washington. 
Scott, James Brown, Washington. 
Siddon, Fred. L., Washington. 
Smith, J. N. O. Lewis, Washipgtoo. 
Sullivan, William C, Washington. 
Taliaferro, Sidney F., Washhigton. 
Thurtell, Henry, Washington. 
Tyler, Frederick S., Washington. 
Weitzel, George T., Waahingt<m. 
Willebrandt, Mabel Walker, Washhigton. 
Williams, George Francis, Washington. 

FLORIDA. 

Ajctell, E. P., Jacksonville. 
Bishop, Henry W., Eustioe. 
Orichlow, W. B. Shelby, Br«ientawn. 
Oibbs, George Cooper, Jacksonville. 
Hampton, Hilton S., Tampa. 
Hampton, W. W., Gainesville. 
Hazard, Julian L., Tampa. 
Hunter, Wm., Tampa. 
Loftin, Scott M., Jadcsonville. 
Price, Nuthell D., Miami. 
Price, William H., Miami. 
Warlar, Freitus, Orlando. 

GEORGIA. 

Gazan, Jacob, Savannah. 
Gilbert, S. Price, Atlanta. 
Oliver, Francis McDonald, Savannah. 
Powell, Arthur Gray, Atlanta. 
Sibley, John A., Atlanta. 
Stephens, Alex W., Atlanta. 

HAWAIIAN ISLANDS. 

Ashford, Marguerite K., Honolulu. 
Lymer, William B., Honolulu. 
Marx, BenJ. L., Honolulu. 

IDAHO. 

Ailshie, James F., Coeur d' Alene. 
Bothwell, James R., Twin Falls. 
Hawley, James H., Boise. 
Kruger, Gustave, Boise. 
Martin, G. H., Sandpoint. 



132 



AMERICAN BAR ASSOCIATION. 



ILUNOIS. 

Barnett, O. B., Chicago. 
Berger, Henry A., Chicago. 
Bledsoe, S. T., Chicago. 
Breckenridge, James J., Chicago. 
Brown, Frederick A., Chicago. 
Cameron, J<An IC, Chicago. 
Carter, Orrin N., Chicago. 
Colwell, Clyde C, Chicago. 
Denning, COarence P., Chicago. 
Early, A. D., Rockford. 
Eastman, Alhert N., Chicago. 
Elliott, John M., Peoria. 
Fassett, Engene O., Chicago. 
FoUansbee, Mitchell D., Chicago. 
Fullerton, William D., Ottawa. 
Goodwin, Clarence N., Chicago. 
Barley, Herbert, Chicago. 
Havard, O. H., Chicago. 
Hay, Logan, Springfield. 
Henry, Louis, Chicago. 
Higbee, Harxy, Plttsfleld. 
Hoag, Parker H., Chicago. 
Howe, Thomas Francis, Chicago. 
Hughes, John E., Chicago. 
Kahn, Nat. M., Chicago. 
King, Florence, Chicago. 
Liss, Max. C, Chicago. 
LisB, Rebecca WUlner, Chicago. 
Liz. Mrs. C, Chicago. 
MacChesney, Nathan William, Chicago. 
MacLeiah, John E., Chicago. 
Marshall, Thomas Lw, Chicago. 
Massena, Roy, Chicago. 
Maxwell, William W., Chicago. 
McCormlck, Howard H., Chicago. 
MacCracken, Wm. P. Jr., Chicago. 
MoKnli^t, Richard, Chicago. 
Montgomeiy, John R., Chicago. 
Murray, Frank B., Chicago. 
Page, Geo. T., Peoria. 
Page, Gerald H., Peoria. 
Pam, Hugo, Chicago. 
Perel, Harxy Z., Chicago. 
Richards, John T., Chicago. 
Robinson, R. D., Galesburg. 
Rogers, Edward S., Chicago. 
Rubinkam, Nathaniel, Chicago. 
Rummler, William R., Chicago. 
Shabad, Henry M., Chicago. 
Sherman, Roger, Chicago. 
Stevens, George M., Chicago. 
Thompson, Joseph J., Chicago. 
Tolman, Edgar B., Chicago. 
Van Natta, John E., Chicago. 
Welch, Ninian H., Chicago. 
Whitnel, L. 0., Bast 8t Louis. 



Woodward, Frederic C, Chicago. 
Zimmerman, E. A., WUmette. 

INDIANA. 

Carney, John Ralph, Vernon. 
Davis, Paul G., Indianapolis. 
Ewbank, Louis B., Indianapolis. 
HeavillB, Roecoe A., Marion. 
Kelley, William H., Richmond. 
Eirkpatrick, Lex J., Eokomo. 
McTuman, Clair, Indianapolis. 
Martlndale, Charles, Indiam^olii. 
Moores, Merrill, Indianapolis. 
Ratclife, 0. B., Covington. 
Rooker, William Velpeau, Indianapolis. 
Sheridan, Harxy C, Frankfort. 
Shirley, C. C, Indianapolis. 
Simms, Dan. W., Lafayette. 
Stevenson, Elmer E., Indianapolis. 

IOWA. 

Carr, E. M., Manchester. 
Chamberlain, Wm., Cedar Rapids, 
deary, T. P., Sioux City. 
Devitt, James J., Oskaloosa. 
Devitt, J. F., Muscatine. 
Dutcher, Chas. M., Iowa City. 
Forrest, Leland S., Des Moines. 
Johnson, Elmer A., Cedar Rapids. 
Macomber, Chas. S., Ida Grove. 
Martin, Wesley, Webster City. 
McCoy, Jotai N., Oskaloosa. 
Miller, Jesse A., Des Moines. 
Roddewig, Louis E., Davenport. 
Sawyer, Haxen I., Keokuk. 
Shull, D. C, Sioux City. 
Wisdom, Frank, Bedford. 

KANSAS. 

Burch, R. A., Topeka. 
Dawson, John S., Topeka. 
Dean, John S., Topeka. 
Drenning, Frank Q., Topeka. 
Evans, Earle W., Wichita. 
Ganse, Henry E., Emporia. 
Houston, J. D., Wichita. 
Keene, A. M., Fort Scott, 
^ng, Chester I., Wichita. 
Matson, Cliff. A., Wichita. 
McAnany, Edwin S., Kansas City. 
Osmond, Wm., Great Bend. 
Pulsifer, Park, Concordia. 
Smith, Chas. Blood, Topeka. 
Smith, F. Dumont, Hutchinson. 
Smith, William R., Topeka. 
Williams, A. F., Topeka. 



MBMBBBS AND DSLE0ATB8 REGISTERED. 



188 



KBNTUOKT. 

BuUitt, Wm. llanhftll. LoultyiUe. 
Doolan, J<rim d Loaisville. 
Hunt, Geoig* R., Lexliigtoiu 
Martin, Qtotge B., Cktlettilnirg. 
Rutledse» Arthur Ifiddleton, LoQiavllle. 
Walton, Matt S., Lexington. 

LOmSIANA. 

OroM, T. Jones, Baton Rouge. 
Dart, Henry P., New Orleans. 
De Lucas, Clarence, New Orleans. 
Oeasner, Jes^y Benedict, New Orleans. 
Gilmer, Quinaley, Shreveport. 
Hart, W. 0., New Orleans. 
Henry, Burt W., New Orleans. 
Kammer, Alfred 0., New Orleans. 
Lemann, Walter, DonaldsonvUle. 
ProYosty, Oliver 0., New Orleans. 
Rice, Frazer L., New Orleans. 
Spearing, J. Zacfa., New Orleans. 
Thornton, R. S., Alexandria. 
Waguespack, W. J., New Orleans. 
Young, W. W., New Orleans. 

MAINE. 

Hanaon, George M., Calais. 
Reynolds, Edward C, Portland. 
Ritchie, Arthur, Belfast. 

MARYLAND. 

Barton, Randolph, Jr., Baltimore. 
Briacoc, John P., Prince Frederick. 
Coshwa, G. F., Baltimore. 
Gorter, James P., Baltimore. 
Hlnkl^, John, Baltimore. 
Kemp, W. Thomas, Baltimore. 
Lamar, W. H., Rockrille. 
Markell, Oiarlea, Baltimore. 
Tiffany, Herbert T., Baltimore. 
Tucker, John T., Baltimore. 
Williams, Geo. Weema, Baltimore. 

MASSACHUSETTS. 

Anderson, George W., Boston. 
Bufflngtoo, Harold S. R., Fall River. 
Carroll, William J., Lowell. 
Clapp, Robert P., Lexington. 
Cook, Robert A. B., Boston. 
HoIumb, Miai Sybil H., Boston. 
Kingsley, Mn. Rose, Cambridge. 
Lowell, John, Boston. 
O'Connell, Joaeph F., Boston. 
Smith, Reginald Heber, Boston. 
Weiler, Harriet, Boston. 
Williston, Samuel* Cambridge. 



MIOHIGAK. 

Ajgler, Ralph W., Ann Arixvr. 
Atkinson, Frank W., Detroit. 
Bates, Henry Moore, Ann Aibor. 
Colgrove, P. T., Hastinga. 
Corliss, John B., Detroit. 
Hooper, Joaeph L., Battle Creek. 
Hull, Oscar C, Detroit. 
Millis^ Wade, Detroit 
Nutten, Wesley L.» Detroit 
Onen, Bernard J., Battle Creek. 
Rossman, R. H., Jackson. 
Whiting, Justin R., Jackson. 

MINNESOTA. 

Brown, Rome G., Minneapolis. 
Bruce, Andrew A., Minneapolis. 
Burr, Stiles W., St Paul. 
Child, S. R., Minneapolis. 
Cbristensen, Henry 0., Rochester. 
Deutsch, Henry, Minneapolis. 
Famham, Charles W., St Paul. 
Graves, William G., St Paul. 
Hilton, Clifford L., St Paul. 
Junell, John, Minneapolis. 
Kingsley, George A., Minneapolis. 
Meighen, John F. D., Albert Lea. 
Mitchell, Morris B., Minneapolis. 
Paul, A. C.| Minneapolis. 
Prendergast Edmund A., Minneapolis. 
Randall, Henry E., St Paul. 
Robertson, James, Minneapolis. 
Sanborn, Bruce W., St Paul. 
Severance, C. A., St Paul. 
Shearer, James D., Minneapolis. 
Turner, S. E., St Paul. 

MISSISSIPPI. 

Anderson, W. D., Jackson. 
Hirsch, J. K., Yicksburg. 
Sexton, J. S., Haielhurst 
Watkins, W. H., Jackson. 

MISSOURI. 

Berth, Irvin Y., St Louis. 
Boyle, Murat Kansas City. 
Bush, Chas. M., Kansas City. 
Claiborne, James R., St Louis. 
Cloud, W. H., Kansaa City. 
Harkless, Jas H., Kansaa City. 
Holt William G., Kansaa City. 
Langknecht Carl H., Kansas City. 
McCune, H. Lw, Kansas City. 
McQuillin, Eugene, St Louis. 
Minnis, Jamea L., St Loula. 
Painter, Earl H., St Loola. 
Piatt, W. H. H., Kansaa City. 



124 



AMBBIOAK BAB ASSOOIATION. 



Scarrett, A. D., KanMs Oity. 
Scarritt, Wm. O., Kansu Oitj. 
Sher, Louis R., St Louis. 
Sturdevant, W. L., St. Louis. 
Watson, I. N., Kansas Oity. 
Wylder, L. Newton, Kansas Oitj. 

MONTANA. 

Pigott, William T., Helena. 
Spaulding» 0. A., Helena. 
Walsh, James A., Helena. 

NEBRASKA. 

Allen, W. J., Schuyler. 
Blackburn, Thomas W., Omaha. 
Brogan, Francis A., Omaha. 
Hastings, W. O., Omaha. 
Hobart, R. W., G«ring. 
Kennedy, Howard, Omaha. 
Letton, Obaa. B., Lincoln. 
Loomls, N. H., Omaha. 
MorrisBy, A. M., Lincoln. 
Myers, Hugh A., Omaha. 
Randall, Frank E., Omaha. 
Randall, William L., Omaha. 
Van Orsdel, R. A., Omaha. 
Wells, Arthur R., Omaha. 

NEVADA. 

Averill, Mark R., Tonopah. 
Ayres, Albuth, Reno. 
Badt, Wilton B., Elko. 
Brown, George S., Reno. 
Brown, Hugh Henry, Tonopah. 
Busteed, Richard, Las Yegu, 
Campbell, Louis Q., Winnemucca. 
Ohartz, Alfred Jean, Garson Oity. 
Oheney, E. W., Rena 
Coleman, BenJ. W., Carson City. 
Cooke, H. R., Reno. 
Dixon, J. B., Reno. 
Ducker, Edw. A., Oamn Clly. 
Edwards, H. W., Ely. 
Farrington, E. S., Carson City. 
Forman, Wm., Tonopsh. 
Gardiner, W. M., Rena 
Guild, Clark J., Terington. 
Hawkins, Prince A., Reno. 
Henderson, A. S., Las Vegas. 
Henley, Benjamin J., Rena 
Howard, Cole L., Reno. 
Kearney, William M., Reno. 
Kublinski, Otto George, Reno. 
Lxmsford, E. F., Rena 
Mashbum, Arthur Gray, Reno 
McCarran, P. A., Reno. 
McNamara, J. M., Blka 



Montrose, Geo. A., Oardnenrille. 
Moran, Tliomas F., Reno. 
Norcross, Frank EL, Rtno. 
Percy, Hugh, Rena 
Pike, Le Ray F., Rena 
PouJade, J., Carson Oity. 
Price, Robert M., Reno. 
Salisbury, S., Reno. 
Sanders, J. A., Carson City. 
Seeds, William P., Reno. 
Short, Edward 0., Rena 
Stoddard, Ray W., Rena 
Summerfleld, Lester D., Reno. 
Taber, E. J. L., Elko. 
Talbot, George F., Elko. 
Warren, Anna M., Rena 
Williams, Eugene L., Reno. 
Wilson, Wayne T., Reno. 
Woodbum, Wm., Rena 
Wright, Benson, Carson City. 

NEW JERSEY. 

Armstrong, E. A., Princeton. 
Bamford, Walter, Patterson. 
Dumont, Wayne, Patterson. 
Richards, Samuel H., Camden. 
Sackett, Clarence, Newark. 
Skinner, Alfred F., Newark. 
Starr, Lewis, Camden. 

NEW MEXICO. 
Backstrom, J. L., Santa Fe. 
Bowman, Harry S., Santa Fe. 
Cheetham, F. J., Taos. 
Edwards, A. M., Santa Fe. 

NEWTORK. 

Alexander, Charles B., New York Oity. 
Andrews, James D., New York City. 
Bailly, Edward a. New York Oity. 
Beattie, Chas. Maitland, New York Oily. 
Bogert, George G., Ithaca. 
Bond, George Hopkins, Syracuse. 
Boston, Charles A., New York City. 
Burlingham, Charles O., New York Oity. 
Clocke, T. Emory, New York City. 
Cohen, Julius Henry, New York Oity. 
Davis, A. M., New York Oity. 
Davis, John W., New York dty. 
Gets, David B., Brooklyn. 
Goldmsn, Samuel P., New York dty. 
GrifRn, Charles L., New York Oity. 
Griffin, William H., New York Oity. 
Groasman, William, New York City. 
Guernsey, Nathaniel T., New York Oity. 
Guthrie, William D., New York City. 
Hill, Henry W., BulTala 



MEMBBBS AND DXLEGATBS BB0I8TERSD. 



1»5 



KeU7, Edward J., New York Oitj. 
'KftlHj, Howard J., New York City. 
Lawyer, Geoigie» Albai^. 
Lewie, Ctaylon H., STTacoae. 
Lyon, Fiances D., Albany. 
ICcCoiUe, Walter L., New York City. 
O'Qiady* Jamea IL E., Rochester. 
Powell, Henry If., New York Oity. 
Ransom, WOllam L., New York Olty. 
Robinson, Watson B., New York Oity. 
Rosenberg, Ely, New York Oity. 
Schroebel, Jacob J., New York Oity. 
Stewart, Robert, New York City. 
Stier, Joseph F., New York Oity. 
Tuft, Henry W., New York Oity. 
Tarbell, Geo. S., Ithaca. 
Terry, Charles Thaddeua, New York Oity. 
Wadhama, Fred E., Albany. 
Whitman, Oharles S., New York Oity- 
Wickeiaham, George W., New York Oity. 
Woloott, Frank T., New York. 

NORTH CAROUNA. 

Alexander, Hiss Julia If., Charlotte. 
King, R. R., Jr., Greensboro. 
Person, W. M., Louisbnrg. 
Smith, R. L., Albemarle. 
Thompson, Frank, Jacksonville. 

NORTH DAKOTA. 

Bangs, Geo. A., Grand Forks. 
Bangs, Tracy R., Grand Forks. 
Boehm, Paul W., Hettinger. 
Bronson, Harrison A., Bismark. 
Combs, Lee, YaBey City. 
Ellsworth, 8. E., Jamestown. 

OHIO. 

Aloom, Albert D., Cincinnati. 

Allread, James I., Oolumbus. 

Ambler, Ralph 8., Canton. 

Bennett, Smith W., Columbus. 

Bmml, Fred E., Cleveland. 

Clevenger, F. K., Wilmington. 

Oonroy, 8. 8., Youngstown. 

Craig, G. Ray, Norwalk. 

Ounen, R. G.» Cleveland. 

Druffel, John H., Cincinnati. 

Dunlap, Thomas 8., Cleveland. 

Ford, John W., Youngstown. 

Garfield, John M., Cleveland. 

Garry, Tbonaa H., Cleveland. 

Goodman, Max P.. Cleveland. 

Graves, William 0., Cleveland. 

Hartley, U. J., Xenia. 

Hoke, dem T., Van Wert. 

Howland, Paul, Cleveland. m 



Ifackensie, Ralph P., Lima. 
Man, Judge Robert 8., Cincinnati. 
Miller, Harry W., Portsmouth. 
Murphy, Clarence, Hamilton. 
Oakes, A. B., Cleveland. 
Peacock, George C, Cincinnati. 
Pogue, Province M., Cincinnati. 
Pomerene, W. R., Columbus. 
Powell, Albert E., Cleveland. 
Runkle, Harry M., Columbus. 
Scott, Frank C, Cleveland. 
Thomas, J. R., Cleveland. 
Throckmorton, A. H., Cleveland. 
Vickeiy, Willis, Cleveland. 
Whitacre, J. J., Canton. 

OKLAHOMA. 

Ames, C B., Oklahoma City. 
Cheadle, John B., Norman. 
Duncan, H. R., Pawhuska. 
Hagan, Horace H., Tulsa. 
Henry, H. D., Mangum. 
Kulp, Victor H., Norman. 
Slou^ B. B., Ardmore. 
Spielman, Jacob R., Oklahoma City. 
Wells, Frank, Oklahoma City. 

m 

OREGON. 

Allen, Harrison, Portland. 
Aaher, Abraham, Portland. 
Back, Sdd J., Portland. 
Bernstein, Alexander, Portland. 
Bischoff, 8. J., Portland. 
Botts, H. T., Tillamook. 
Briggfl, Wm. M., Ashland. 
Butt, Clarence^ Newberg. 
Carey, Charles Henry, Portland. 
Cochran, Charles E., Portland. 
Coshow, 0. P., Roseburg. 
Duncan, W. M., Klamath Falls. 
Emmons, Arthur C, Portland. 
Finn, C. H., La Grande. 
Fitsgerald, J. J., Portland. 
Gearin, John M., Portland. 
Hale, William G., Eugene. 
Immel, E. 0., Eugene. 
Kerr, James B., Portland. 
Laing, John A., Portland. 
Lent, George P., Portland. 
McCourt, John, Portland. 
McOue, John C, Portland. 
Miller, Justin, Eugene. 
Montague, Richard W., Portland. 
Montgomery, Hugh, Portland. 
Moser, Gus C, Portland. 
Pipes, Martin L., Portland. 
Rand, John L., Portland. 



126 



AHERIOAN BAB ASSOOUTION. 



Ridgway, Albtft B., PoitUnd. 
Swagler, Ralph W., Ontario. 
Teal, Joseph N., Portland. 
Tucker, Robert, Portland. 

PENNSTLYANIA. 

Berkey, John Albert, Somerset. 
Bomeman, Henry S., Philadelphia. 
Breeden, Waldo Preston, Pittsburgh. 
Crawford, Winfield W., Philadelphia. 
Hannum, Howard E., Chester. 
Hannum, John B., Jr., Chester. 
Hargest, William M., Harrisburg. 
Hart, Geo., Philadelphia. 
Hazzard, Yemon, Monongahela. 
Henderson, Joseph W., Philadelphia. 
Holding, A. M., West Chester. 
Merchant, Edward, Philadelphia. 
Moorhead, F. O., Beaver. 
Patterson, Marion D., HoUidaysburg. 
Rawle, Francis, Philadelphia. 
Roberts, C. Wilson, Philadelphia. 
Shick, Robert P., Philadelphia. 
Smith, Walter George, Philadelphia. 
Sorber, Samuel R., Oreensburg. 
Stem, A. C, Pittsburgh. 
Whithead, H. W., WiUiamsport 
Wright, J. MerriU, Pittsburgh. 

PORTO RICO. 
Wolf, Adolph G., San Juan. 

RHODE ISLAND. 
Jenckes, Thomas A., Proridence. 

SOUTH CAROLINA. 

Earle, Wilton H., Greenville. 
Oibbes, Hunter A.. Columbia. 
Gylea^ Herbert E., Aiken. 
Huger, Alfred, Charleston. 
Hyde, Simeon, Charleston. 
Lumpkin, Alva M., Columbia. 
Otts, Cornelius, Spartansburg. 
Thomas, John P., Jr., Columbia. 
Wolfe, Sam M., Columbia. 

SOUTH DAKOTA. 

Cherry, U. S. O., Sioux Falls. 
Patterson, E. 0., Dallas. 
Patterson, Mrs. E. 0., Dallas. 
Telgen, Tore, Sioux Falls. 
Voorhees, John H., Sioux Falls. 

TENNESSEE. 

Armstrong, Walter P., Memphis. 
Jackson, R. F., Nashville. 



Miles, Lovick P., Memphis. 
Newman, Clair« B., Jackson. 
Owen, William A., Covington. 
Swaney, W. B., Chattanooga. 
Trimble, James M., Chattanooga. 
Turner, Judge W. B., Columbia. 
Washington, W. H., Nashville. 
Young, J. P., Memphia. 

TEXAS. 

Bonner, Wm. N., Wichita Falls. 
Britain, A. H., Wichita Falls. 
Bromberg, Henri Louie, Dallas. 
Brown, Yolney M.. El Paso. 
Burford, Jos. M., Mount Pleasant. 
Burges, William H., El Paso. 
Carrigan, A. H., Wichita Falls. 
Cooke, Clay, Fort Worth. 
Crook, W. M., Beaumont. 
Croom, a W., El Paso. 
Frank, D. A., Dallas. 
Franklin, Thos. H., San Antonio. 
Graves, Ireland, Austin. 
Lawther, Harry P., Dallas. 
Mays, Richard, Corslcana. 
Newman, F. M., Brady. 
Saner, Robert E. L., Dallas. 
Shurter, E. D., Austin. 
Smith, W. D., Fort Worth. 
Smith, W. R., El Pasow 
Street, Robert G., Galveston. 
Stuart, R. T., Dallas. 
Todd, Chas. S., Texarkana. 
Werlein, Ewing, Houston. 
Wright, W. A, San Angela 

UTAH. 

Bagley, Emmett, M., Salt Lake City. 
CheK, Joseph, Ogden. 
Cluif, Harvey H., Salt Lake City. 
DeYine, J. H., Ogden. 
Evans, Jos. B., Ogden. 
Hollingsworth, Chas. R., Ogden. 
Jenson, David, Ogden. 
Kimball, James N., Ogden. 
Lee, E. 0., Salt Lake City. 
MacLane, John F., Salt Lake City. 
Nibley, Joel, Salt Lake City. 
Porter, Robt. B., Salt Lake City. 
Richards, Frank S., Salt Lake City. 
Richards, Franklin S., Salt Lake City. 
Richards, Stephen L., Salt Lake City. 
Rydalch, William E., Salt Lake City. 
Schulder, Russell O., Salt Lake City. 
Shields, Dan B., Salt Lake Oity. 
Smith, Geo. H., Salt Lake City, 
surfer, W. I., Salt Lake Oity. 



MEMBERS AND DELEGATES BEGISTERED. 



127 



Stephena, Huold M., Salt Lake Oitj, 
Wolfe, Jamea H., Salt Lake Oity. 

TERMONT. 

Hogan, Geo. M., St. Albans. 
Button, Oharlea I., Middlebuiy. 
Powers George 11., MonrlsTllle. 
Tonng, Geo. B., Montpelier. 

VIRGINIA. 

Beaman, Robert P., Norfolk. 
Blair, D. M., Rldunond. 
Bowe, Stuart, Rldunond. 
Oaton, Jamea R., Alexandria. 
Chichester, O. M., Richmond. 
Groner, D. Lawrence, Norfolk. 
Lea, John P., Richmond. 
Hassle, Eugene 0., Ridunood. 
Peyton, Robert E., Jr., Richmond. 
Prsntfa, Robert R., Suffolk. 
Rawley, J. Kent, Richmond. 
Shelton, Thomas W., Norfolk. 
Williams, E. Randolph, Richmond. 
Wllliama, Z. Randolph, Richmond. 

WASHINGTON. 

Bates, Charles O., Taooma. 
Heeler, Adam, Seattle. 
Bogle, Lawrence, Seattle. 
Bridges, J. B., Olympia. 
Bruener, Theodore B., Aberdeen. 
Ohadwick, S. J., Seattte. 
Coleman, J. A., Everett 
Davis, Arthur W., Spokane. 
Delle, Lee O., Takima. 
Dore, John F., Seattle.' 
Douglaa, Ma1<M>lm, Seattle. 
Gordon, J. H., Taeema. 
Oose, M. F., Oljmpia. 
Grady, Thomas E., Takima. 
Haight, James A., Seattle. 
Hamblen, L. R., Spokane. 
Herald, Emcat B., Seattle. 
Herr, WiUis B., SeatUe. 
Kiier, B. H., Spokane. 
Levine, Benjamin M., Seattle. 



Lindsley, Joseph B., Spokane^ 
McLaren, W. G., Seattle. 
McWilliams, H. L. M., Spokane. 
Hetsenbaum, Walter, Seattle. 
Ifonten, William A., Spokane. 
Muzphy, John F., Seattle. 
Nuzum, Richard W., Spokane. 
Peterson, Charles T., Tacoma. 
Post, Frank T., Spokane. 
Pummens, George H., Seattle. 
Remington, Arthur, Tacoma. 
Ridiards, N. C, Takima. 
Rowland, Diz H., Taooma. 
Rupp, Otto B., Seattle. 
Shepard, Charles B., Seattle. 
Spirk, Charlce A., Seattle. 
SuUiTan, John J., Seattle. 
Thompson, L. L., Olympia. 
Thorgrlmson, 0. B., Seattle. 
Tolman, Warren W., Olympia. 
Tyler, Albert W., Olympia. 

WEST VIRGINIA. 

Lynch, Charles W., Clarluburg. 
Madden, Joseph Warren, Morgantown. 
Prerton, John J. D., Charleston. 
Smith, Harvey F., Clarksburg- 
Yandervort, James W., Parkersburg. 

WISCONSIN. 

Frame, H. J., Waukesha. 
Hudnall, George B., Milwaukee. 
Lecher, Louis A., Milwaukee. 
McConnell, John E., La Crosse. 
Owen, W. 0.« Madison. 
Sanborn, John B., Madison. 
Shea, William F., Ashland. 
Schoets, Max, Jr., Milwaukee. 
Thompson, William D., Racine. 

WYOMING. 

Corthell, N. E., Laramie. 
Kinkead, W. C, Cheyenne. 
Matson, Roderldc N., Chsyenne. 

Total number registered, 1447. 



ANNUAL DINNER 

The annual dinner was held on Friday evening, August 11, 
1922, at the Palace Hotel, San Francisco, California. President 
Cordenio A. Severance presided. 
The speakers were : 
Beverly L. Hodghead, of San Francisco. 
Et. Hon. Lord Shaw, of Dunfermline. 
M, Henry Aubepin, of Paris. 
John B. M. Baxter, K. C. M. P., of St. John, N. B. 
John W. Davis, of N"ew York. 
Senator Cornelius Cole, of Los Angeles. 
The Chief Justice of the United States. 
There were 1030, members and guests in attendance at the 
dinner. 



(128) 



LIST OF PRESIDENTS 

1. 1878-70-* Jamis O. Bboadhkad ^ St. Louis, MiflBoun. 

2. 1879-80-*Bbnjamik H. Bbistow New York, New Yoik. 

3. 188Q-^1-*£dward J. Philpb Burlington, Vermont. 

4. 1881-82-*Clark80N N. Pottsb ' New York, New York. 

5. 1882-^83-* Albxandbb R. Lawton Savannah. Georgia. 

6. 1883-^4-*Ck)BTLAN]yT Pabxsb Newark, New Jersey. 

7. 1884-85-* John W. Stivbnson Covington, Kentucky. 

8. 1885-86-*WiLLiAM Alubn Butlib New York, New York. 

0. 1886-87-*Thoma8 J. Sbmmbs New Orleans, Louisiana. 

10. 1887-^88-*Gk>bgb G. Wbiqht Des Moines, Iowa. 

11. 188S-80-*David DuDunr Fikld New York. New York. 

12. 1880-00-*HxNBT HiTCHOOCK St. Louis, Missouri. 

13. 1800-01- SiMsoN £. Baldwin New Havexi. Connecticut. 

14. 1801-02-*JoHN F. Dillon New York, New York. 

15. 1802-03-* John Randolph Tucxeb Lexington, Vir^nia. 

16. 180^04-*TBOMAa M. Coolbt' Ann Arbor, Michigan. 

17. 1804-05-*Jami8 C. Cartib New York. New York. 

18. 1805-06- MooBnBU) Stobet Boston, Masmchusetts. 

10. 1806-07-*Jamb8 M. Woolwobth Omaha, Nebraska. 

20. 1807-08-*Willum Wirt Bows New Orleans. Louisiana. 

21. 1808-00-* JosiPH H. Choatb * New York, New York, 

22. 1800-1000-*Chablb8 F. Mandbbson Omaha, Nebraska. 

23. 1000-1001-*Edmund Wbtmobb New York. New York. 

24. 1001-1002-*U. M. RosB Little Rock, Arkansas. 

25. 1002-1003- FsANas Rawli Philadelphia, Pennsylvania. 

26. 1003-1004-* James Hagbbman St. Louis, Missouri. 

27. 1004-1005- Hbnbt St. Gborgb Tuckeb. . Lexington, Virginia. 

28. 1005-1006- Gbobgb^ R. Pbck Chicago, Illinois. 

20. 1006-1008- Alton B.Pabkeb New Yoric, New York. 

30. 1007-1008- J. M. Dickinson Chicago, Illinois. 

31. 1008-1000- Fbedebick W. Lbhmann. . . . St. Louis, Missouri. 

32. 1000-1010-*Chablb8 F. Libbt Portland, Maine. 

33. IOIO-IOH-^Edoab H. Fabbab New Orleans, Louisiana. 

34. 1011-1012-*Stbphbn S. Gbbqobt Chicago, Illinois. 

35. 1012-lOia- Fbank B. Kellogq St. Paul, Minnesota. 

36. 1013-1014- WiujAM H. Tatt New Haven, Connecticut. 

37. 1014-1015- Petbb W. Meldbim Savannah, Georgia. 

38. 1015-1016- Elihu Root New York, New York. 

30. 1016-1017- Gbobge Suthebland Salt Lake City, Utah. 

40. 1017-101&- Waltbb Gboroe Smith Philadelphia, PennQrlvania. 

41. 1018-1010- Geobgb T. Page Peoria, Illinois. 

42. 1010-1020- Hampton L. Cabson Philadelphia, Pennsylvania. 

43. 1020-1021-*WiLUAM A. Blount * Pensacola, Florida. 

44. 1021-1022- CoBDBNio A. Sbvebange St. Paul, Minnesota. 

46. 1022-1023- John W. Davib New York, New York. 

'Deceased. 

*At the Oonference for organftdng the AHodatlon In 1878* John H. B. Letrobe, of 
lUryland, wu elected Temponnr Gbainoan, and when the organisation was oompleted, 
Benjamin H. Bristow. of Kentocsy, was elected President of the Conference. 

* In oonseqnenoe of the death of Olarkson N. Potter, Francis Keman, of New York, 
presided and preiwred and delirered the President's Address in 1882. 

* In consequence of the illness of Thomas M. Cfoolcj, Samnel F. Hnnt, of Ohio, presided 
and read the President's Address prepared hj Juajge Ooolqr in 18M. 

*In consequence of the absence of Joseph H. Ohoate, as Ambaasador to Ortat Britain, 
Oharles F. llandemn, of Nebra^, presided and prepared and delivered tlie President's 
Address in 18B0. 

* In conseqnence of the death on June 16, 1021, of William A. Blonnt the Ezecotive 
Committee elected the last retiring President, Hamnton L. Carson, as Actinic President 
nntil the next annual meeting. James M. Beck, of New York, prepared snd read the 
President's Address in 1921. 

(120) 



LIST OF SECRETARIES 

1. 187^03-*Edwabd Otis Hinxlit ^ Baltimore, Maryland. 

2. 1803-190&- John Hinklbt ' Baltimore, Maiyland. 

3. 190&-1020-*Gbobqb Whitblock Baltimore, Maryland. 

4. 102O- W. Thomas Ebmp* Baltimore, Maryland. 

LIST OF ASSISTANT SECRETARIES 

1. 1909-1910- Albbbt C. RrrcHiB* Bakimc^e, Maryland. 

2. 1910-1920- W. Thomas Ebmp Baltimore, Maryland. 

3. 1913-1920- Gatlobd Leb Clark Baltimore, Maryland. 

LIST OF TREASURERS 

1. 1878-1902- FbANCiB Rawlk Philadelphia, Pennsylvania. 

2. 1902- Fbbdbsick E. Wadhams Albany, New York. 



• 



Deceued. 



^ In X878, Francii IUwl«, of Pennqylyania, and Imac OnuBt Tliompion, of New York, 
acted aa temporarT 8«cretariei and aa Secretaries of the Oonference. 

In 1880, Edward Otia Hinklej being abeent, Walter Qeorse Smitli, off PennorlranJa. 
acted aa SeoreCaiy pro tampon. 

>Ib 1808» John HinUej bdnf abaent, George P. Wanty, of Michigan, acted mm 
Secretary pro tempore. 

* In Januaij, IKO, George Whitelock haying died, the Executive Oemmittee appointed 
W. ThoBM Senp to fill the vacancy until the Annual Meeting when the AModation 
elected Mm Secretary. 

^ In 1909 by Tirtue of amendment to Oonetitution, the Ezecatiye Oommittct elected an 
Afllrtant Secretary. 



(ISO) 



LIST OF EXECUTIVE COMMITTEE 

1. 1878-87-*LuKB P. Poland 8t. JohDrf>uiy, Vermont. 

2. 1879-^8- SiMioN £. Baldwin^ New Haven. Connecticut 

3. 1878-Sa-*WiLLiAM A. FiaHBB Baltimore, Maryland. 

4. 1880^85-*WiLLiAM Allbn BxjTLEa New York. New York. 

6. 188&-90-*Chablb8 C. Bonnet ' Chicago, iJlinoia. 

6. 1887-96-*G«OBaB A. Mbbgbr Savannah, Geoi^a. 

7. 188S-Q0-*JoHN Randolph Tugkd Lexington, Virginia. 

8. 1800-01-*WiLLLiM P. Wills Detrmt, Michigan. 

9. 1890-0^ Altobd Himbnwat Boston, Maancnusetts. 

10. 1891-05-*Bbadlbt G. Sghlbt Milwaukee. Wisconsin. 

11. 1805-09- Chablbb Claflin Allbn St. Louis, AiisBOuri. 

12. 189fr-07-*WiLLUM WiBT HowB New Orleans, Louisiana. 

13. 1897- " - - — - 

14. 1809- 

15. 1899- 

16. 1899- 

17. 1809- 

18. 1900- 

19. 1900- 

20. 1901- 

21. 1902- 

22. 1902- 

23. 1903- 

24. 1903- 

25. 1903- 

26. 1905- 

27. 1905- 

28. 190&- 

29. 1906- 

30. 1906- 

31. 1908- 

32. 1908- 

33. 1909- 

34. 1909- 

35. 1909- 

36. 1911- 

37. 1911- 

38. 1912- 

39. 1912- 

40. 1912- 

41. 1913- 

42. 19ia- 

43. 1914- 

44. 1914- 

45. 1914- 

46. 191&- 



900- Chablbb Noblb Gbbgobt. . . . Washington. D. C. 

900-*Edmund Wbtmobb New Yoik. Kew York. 

901-*U. M. RoBB Little Rock, Arkansas. 

902- WnjJAM A. Kbtchai£ IncHanapolis, Indiana. 

902- Hbnbt Br, Gbobob Tuckbb. . Lexington, Virginia. 

903- Rqdnbt a. Mbbcub Towanda, Pennsylvania. 

903-*Chablb8 F. Libbt Portland, Maine. 

903-*Jambs Haobbman St. Louis, Missouri. 

905- P. W. Mbldbim Savannah, Qeoivia. 

905- Plait Rogbbb Denver, Coloradfo. 

906- M. F. Dickinson Boston. Masmchusetts. 

906- Thbodobb S. Gabnbtt Norfolk, Virnnia. 

906- WiLLUM P. Bbebn Fort Wayne, Indiana. 

908- Chablbb Monbob Los Angeles, California. 

908-*Ralph W. BBBCXBNBiDaB. . . . Omaha, Nebraska. 
909-*Chablbs F. Libbt Portland, Maine. 

909- Waltbb Gbobob Smith Philadelphia, Pennaylvania 

909- RoMB G. Bbown Minneapolis, Minnesota. 

911- William O. Habt New Orleans, Louisiana. 

911- Chablbs Hbnbt Butlib New York, New York. 

912- John Hinklbt Baltimore, Morvland. 

912-*Ralph W. BsBCKBNBiDaB. . . . Omaha, IS(ebrR«ka. 
912- Ltnn Hblm Los Angeles, California. 

914- HoLLis R. Bailet Boston, MasBacllusetts. 

914-* Alois B. Bbowitb Washington, D. C. 

916- William H. Bubgbs El Paso, Texas. 

915- John H. Voobhbbs Sioux Falls, South Dakota. 

916- William H. Staazs Philadelphia, Pennsylvania. 

,914-*Albbbt W. Biogs ' Memphis, Tennessee. 

916-* William C. Niblack Chicago, Illinois. 

917- Sbldbn p. Spbncbb St. Louis, Missouri. 

917- William P. Btnum Greensboro, North Carolina. 

917- Chapin Bbown Washington, D. C. 

918- Chabubs N. Potteb Cheyenne, Wyoming. 



* In 1888, at the flnt meetiiur of the EzaeatiTe Oommittee after the a^Joummeiit of the 
AModatioo, Slmeoii E. Bald^dn reigned, and Oharlea 0. Boonej waa choien to lUl the 
Taeancj under Qr-Law X. 

^ In leiS, by virtue of amendment to Oonatltutlon, the nmnber of eleetiTe mcBBbeia of 
Bzecotive Oommittee waa Increaaed from fire to eeren. 

(131) 



132 AMERIOAN BAB ASSOCIATION. 

47. 1915-191&- John Lowbll Boston, MaaBachusetts. 

48. 1915-1918- Charles Blood Smith Topeka, Kansas. 

49. 1916-1919- Ashley Cockrill ' Little Rock, Arkansas. 

50. 1916-1917- Waltbr George Smith Philadelphia, Pennsylvania. 

51. 1917-1918- George T. Page Peoria, Illinois. 

52. 1917-1920- T. A. Hammond Atlanta. Georjcia. 

53. 1917-1920- U. S. Q. Cherry Sioux Falls, South Dakota. 

54. 1917-1920- Charles Thadoeus Terry. . . New York, New York. 

55. 1917-1920- RoBEST E. L. Saner* Dallas, Texas. 

56. 191^1921- Edmund F. Trabue Louisville, Kentucky. 

57. 1918-1921- Thomas H. Reynolds Kansas City, Missouri. 

58. 1918-1921- George B. Young Montpelier, Vermont. 

59. 1918-1921- Paul Howland Cleveland. Ohio. 

60. 1919-1922- Thomas C. McClellan Montgomery, Alabama. 

61. 1920- Hugh H. Brown Tonopah, Nevada. 

62. 1920- John B. Corliss Detroit, Michigan. 

63. 1920- John T. Richards Chicago, Illinois. 

64. 1920- W. O. Hart* New Orleans, Louisiana. 

65. 1921- Thomas W. Blackburn Omaha, Nebraska. 

66. 1921- Wiluam Brosmith Hartford, Connecticut. 

67. 1921- S. E. Ellsworth Jamestown, North Dakota. 

68. 1921- Thomas W. Shblton Norfolk, Virginia. 

69. 1922- A. T. Stovall Okolona, Mississippi. 



• 



'Deceased. 

 In 1916, by virtue of amendment to Constitution, the number of elective members of 
Executive Oommittee was increased from seven to elftht. ^ ^ 

«ln 1016, by virUe of amendment to Constitution, the Chairman of the Qeneral 
Council was made an m officio member of the Executive Committee. 



LIST OF PLACES' OF MEETING AND ATTENDANCE 



Meeting. Year 
1....1878. 

2.... 1879. 
3.. ..1880. 
4.... 1881. 
5.... 1882. 
6.... 1883. 

7. • .  lao4. 

8.. ..1885. 

o. . . . looD. 

10.... 1887. 
11. ...1888. 
12.... 1880. 

lu. ... lovU. 

14.... 1891. 
15.... 1892. 
16.. . .1893. 

If.... lolfs. 
lo. ... looD. 

19.... 1896. 
20.. ..1897. 
21.... 1898. 
£i» . . . lo9<7. 
23. ...1900. 
24.. ..1901. 
25.. ..1902. 
26.... 1903. 

£t m ... IVIn. 

28.... 1905. 

^9. ... IVUO. 
oO. ... 1907. 
31.... 1908. 
«S2. ... 1909. 

33.... 1910. 

34.... 1911. 

' 35.... 1912. 

. vD. ... 191o. 

37.... 1914. 
38.... 1915. 

39 1916. 

40. ...1917. 
41.... 1918. 
42.... 1919. 
43.... 1920. 
44. ...1921. 
45.... 1922. 



Date. 

.Aug. 21, 22 

.Aug. 20, 21 

.Aug. 18, 19, 20 

.Aug. 17, 18,19 

.Aug. 8, 9, 10, 11 

.Aug. 22, 23, 24 

.Aug. 20, 21, 22 

.Aug. 19,20,21 

.Aug. 18, 19, 20 

.Aug. 17, 18,19 

.Aug. 15,16,17 

.Aug. 28, 29, 30 

.Aug. 20, 21, 22 

Aug. 26, 27, 28 

.Aug. 24, 25, 26 

.Aug. 30, 31, Sept. 1... 

.Aug. 22, 23, 24 

.Aug. 27, 28, 29, 30 

.Aug. 19,20,21 

.Aug. 26, 26, 27 

.Aug. 17, 18, 19 

.Aug. 28, 29, 30 

.Aug. 29, 30,31 

.Aug. 21, 22, 23 

.Aug. 27, 28, 29 

.Aug. 26, 27, 28 

.Sept. 26,27,28 

.Aug. 23, 24, 25 

.Aug. 29, 30, 31 

.Aug. 26, 27, 28 

.Aug. 25, 26, 27, 28 

.Aug. 24, 25, 26, 27 

.Aug. 30, 31, Sept. 1... 

.Aug. 29, 30, 31 

.Aug. 27, 28, 29 

.Sept. 1, 2, 3 

.Oct. 20, 21,22 

.Aug. 17, 18, 19 

.Aug. 30, 31, Sept. 1... 

.Sept. 4, 5 6 

.Aug. 28, 29, 30 

.Sept. 3, 4, 5 

.Aug. 25, 26, 27 

.Auk. 31. Sept. 1,2 

.Aug. 9, 10, 11 



Place. 



Attendance. 



Saratoga Springs, N. Y 75 

Saratoga Springs, N. Y. . . . (m iMwd) 

Saratoga Springs, N. Y 97 

Saratoga Springs, N. Y 124 

Saratoga Springs, N. Y 107 

Saratoga Springs, N. Y 120 

Saratoga Springs, K. Y 108 

Saratoga Springs, N. Y 124 

Saratoga Springs, N. Y 137 

Saratoga Springs, K. Y 149 

Saratoga Springs, N. Y 121 

Chicago, Dl 158 

Saratoga Springs, N. Y 132 

Boston, Mass 292 

Saratoga Sprinfps, N. Y 143 

Milwaukee, Wis 130 

Saratoga Springs, N. Y 140 

Detroit, Mich 199 

Saratoga Springs, N. Y 276 

Cleveland, Ohio 184 

Saratoga Springs, N. Y 227 

Buffalo, N.Y 227 

Saratoga Springs, N. Y 230 

Denver, Colo 306 

Saratoga Springs, N.^Y 230 

Hot Springs, Va 250 

St. Louis, Mo 451 

Narragansett Pier, R. 1 277 

St. Paul, Minn 369 

Portland, Maine 402 

Seattle, Washington 312 

Detroit, Michifsan 389 

Chattanooga, Tennesee 324 

Boston, Mass 625 

Milwaukee, Wis 558 

Montreal, Canada 1023 

Washington, D. C 1184 

Salt Lake City, Utah 531 

Chicago, III 943 

Saratoga Springs, N. Y 598 

Cleveland, Ohio 604 

Boston, Mass 871 

St. Louis, Mo 727 

Cincinnnti. Ohio 1206 

San Francisco, Cal 1447 



(133) 



CONSTITUTION AND BY-LAWS 



CONSTITUTION 
Artiolb I. 

NAKB AND OBJBCT. 

This Association shall be known as ^'Thb Akericak Bab 
Association/' Its object shall be to advance the science of 
jurispmdence, promote the administration of justice and uni- 
formity of legislation and of judicial decision throughout the 
Nation^ uphold the honor of the profession of the law, and en- 
courage cordial intercourse among the members of the Americar 
Bar. 

Abholb II. 

* QUALIFI0ATI0N8 FOB KBKBBB8HIP. 

Any person, on nomination in accordance with the proyisions 
of Article III, shall be eligible to membership in this Associa- 
tion who shall be, and shall have been for three years next 
preceding nomination, a member in good standing of the Bar 
of any state. 

Abticlb III. 

BLBOTION OF KBHBBBB. 

(a) Nominations for membership shall be made by a majority 
of the Local Council of the state to the Bar of which the persons 
nominated belong, and must be transmitted in writing to the 
Chairman of the General Council, and approved by the Council 
on vote by ballot, except as provided in sub-division (d) hereof. 

(b) The General Council may also nominate members from 
states having no Local Council, and at the annual meeting of the 
Association may nominate members from any state of which 

* Adopted September 5, 1919. 

(134) 



00N8TIXUTI0N. 186 

a majority of the members of the Local Coimdl are not then 
in attendance; but no such nomination shall be made or con- 
sidered by the General Council, unless supported by a statement 
in writing of at least three members of the Association from 
the same state with the person nominated, or in the absence 
of three such members, then by three members from a neigh- 
boring state or states, to the efEeet that the person nominated 
has the qualifications required by the Constitotion and desires 
to become a member of the Association, and that his admission 
as a member is recommended by the signers of the statement. 

(c) All nominations thus msde shall be reported by the Coun- 
cil to the Association for its action. The vote shall be taken 
viva voce, unless any member demand a vote by ballot upon any 
name thus reported, in which case the Association shaU yote 
thereon by ballot. Five negatiye Yotes shall prevent an election. 

(d) During the period between annual meetings, members 
may be elected by the Executive Committee upon the written 
nomination of a majority of the Local Council of any state. 
One negative vote in the Executive Committee shall prevent an 
election. 

(e) Persons of distinction who are members of the Bar of 
another country but not members of the Bar of any state 
of the United States, may, without formal nomination or cer- 
tification, be elected by the Executive Committee to be honorary 
members of the Association. Honorary members shall be entitled 
to the privileges of the fioor during meetings, but shall not be 
entitled to vote, and they shall pay no dues. 

AanoLB rv. 

OPFIOflBS, OOMlOmDn AKD 810TI0NB. 

The following ofiicers shall be elected at each annual meet- 
ing for the year ensuing: 

A President; 

A Vice-President from each state; 
A Secretary; 
A Treasurer; 

A General Council, consisting of one member from each 
state. 



136 AMERICAN BAB ASSOCIATION. 

The same person shall not be elected President in two sucoeG- 
sive years. 

The General Council shall be a Committee on Nominations 
for office and shall elect its Chairman annoallyy but ths 
same person shall not be elected Chairman more than 
three successive years. 

There shall be an Executive Committee^ which shall con- 
sist of the President^ the last retiring President, the Chairman of 
the General Council^ the Secretary and the Treasurer, all of 
whom shall be members ez-officio, together with eight other 
members to be elected by the Association upon nomination by 
the General Council, but no member shall be elected more than 
three years in succession. The President, and in his absence the 
former President, shall be Chairman of the committee. 

The Executive Committee shall have full power and authority, 
in the interval between meetings of the Association, to do all 
acts and perform all functions which the Association itself might 
do or perform, except that it shall have no power to amend the 
Constitution or By-Laws. 

There shall be one or more Assistant Secretaries, who shall be 
elected by the Executive Committee, and shall hold office at the 
pleasure of that committee. 

The following committees shall be appointed annually by the 
President for the year ensuing, each to consist of five members, 
unless otherwise specifically indicated herein : 

On Commerce, Trade and Commercial Law ; 

On International Law; 

On Insurance Law; 

On Jurisprudence and Law Beform, to consist of 15 members ; 

On Professional Ethics and Grievances; 

On Admiralty and Maritime Law ; 

On Publicity; 

On Publications ; 

On Noteworthy Changes in Statute Law ; 

On Legal Aid Work ; 

On Membership, to consist of such number as the President 
may appoint; and 

On Memorials, of which the Secretary shall be the Chairman. 



CONSTITUTION. 1S7 

The Chairman of each Section of the Association, and the Presi- 
dent of the National Conference of Commissioners on Uniform 
State Laws, shall each be deemed a committee of one, and each 
shall report the work of his Section or Conference and present its 
recommendations for action by the Association. 

A majority of the meimbers of any committee, including the 
General Council, present at any meeting shall constitute a 
quorum. 

The Vice-President for each state and four other members 
from such state to be annually elected, shall constitute a Local 
Council for such state. The Vice-President shall be ez-olBScio 
Chairman thereof. It shall be the duty of the Vice-President 
from each state to report the deaths of members within the 
same to the Committee on Memorials. 

The members of the General Council and the members of the 
Local Council in each state shall constitute a committee for their 
state to further the interests and opinions of the American Bar 
Association in such manner and in such ways as shall be sug- 
gested by the Executive Committee. 

There shall be the following Sections of the Association : 

Section of Legal Education and Admissions to the Bar ; 

Section of Patent, Trade-Mark and Copyright Law ; 

Judicial Section ; 

Comparative Law Bureau ; 

Section of Public Utility Law ; 

Section of Criminal Law and Criminology ; 

Conference of Bar Association Delegates; and such other 
Sections as may from time to time be authorized by the Associa- 
tion upon the recommendation of the Executive Committee 
thereof. 

Each Section shall have a Chairman, Vice-Chairman, Secre- 
tary, Treasurer, and a Council which shall consist of eight mem- 
bers elected by the Section. Each Section shall have power to 
adopt By-Laws for the regulation of its functions, not inconsis- 
tent with the Constitution and By-Laws of the Association, 
and subject to the approval of the Executive Committee of 
the Association. The Council of each Section shall be known 
and designated as '^ The Council of the American Bar Associa- 
tion'' on the particular subject which characterizes the work of 



138 AMERICAN BAB A8SO0UTION. 

tile Seotion^ as, for example^ the Council of the Section of Legal 
Education and Admissions to the Bar shall be known as '^ The 
Council of the American Bar Association on Legal Education and 
Admissions to the Bar.*' Qualifications for membership in anj 
Section may be determined by the Section itself and shall be 
defined in its own By-Laws, provided that action taken by a 
Section must be approved by the Association before the same 
shall become e£Fective. 

Abtiolb V. 

BT-LAWS. 

By-laws may be adopted, amended, or rescinded at any meet- 
ing of the Association by a vote of three-fourths of the mem- 
bers present at any session of such annual meeting, provided 
there be not less than two hundred members present at such 
annual meeting, and provided further that notice shall have been 
given by the Secretary to the members of the Association either 
by mail or by publication in the Journal at least thirty Aays 
before the meeting at which action is taken. 

Artiolb YI. 

DUBS. 

Bach member shall pay $6.00 to the Treasurer annually, which 
sum shall include dues and the cost of subscription to the 
Ambbioan Bar Assooiation Journal, which to members is 
$1.60 per year. All other publications of the Association shall 
be free of charge to the members. No person shall be in good 
standing or qualified to exercise any privilege of membership 
who is in default. The Executive Committee, in its discretion, 
may remit the dues of any member under special circumstances. 

Artiolb VII. 

PBBSIDENT'S ADDBB88. 

At each annual meeting of the Association, the President 
shall deliver an address upon such topics as he may select with 
the approval of the Executive Committee. 



OONSTITUTION. 139 

Abticlb VIII, 

ANNUAL KKBTING8. 

The Association shall meet annually at such time and place 
as the Executive Committee may select^ and those present at 
any session of any meeting shall constitute a quorum, except as 
proYided in Articles Y and X. 

The American flag shall be displayed at all meetings of the 

Arxiolb IX. 

RBFSBSNDUX. 

The Executive Committee may submit from time to time by 
referendum to the individual members of the Association ques- 
tions affecting fhe substance or the administration of the law 
which in the opinion of the Committee are of immediate practical 
importance to the whole country. 

AxnoLB X. 

A1CSNDHBNT8. 

This Constitation may be altered or amended only by a vote 
of three-fourths of the members present at any session of an 
annual meeting, but no such change, shall be made unless at least 
two hundred members shall be present, nor unless notice of the 
proposed alteration or amendment shall have been given by the 
Secretary to the members of the Association either by mail or 
by publication in the JoubnaIj at least thirty days before the 
meeting at which the amendment is offered. 

Abtiolb XI. 

CX>N9TBU0nON. 

The word '' state,'' whenever used in this Constitution, shaU 
be deemed to comprise state, territory, the District of Columbia 
or any insular or other possession of tiie United States and places 
over which the United States exercises extra-territorial juris- 

diction. 



BY-LAWS. 

MSBTINQ OF THB A88O0UTI0N. 

I. The program and order of exercises at the annual meeting 
of the Association shall be those prescribed by the Execative 
Committee and notified to the members at least thirty days before 
the meeting. 

BEPOBTB OP OOHKITTBES. 

II. Where the report of a committee has been printed^ it shall 
not be read at a meeting of the Association, but if the report 
recommends action by the Association, the recommendations shall 
be set forth at the beginning of the report, and the chairman of 
the committee may state briefly to the meeting their substance 
and the reasons for them. 

HBSOLUTIONS — ^PBOOEDUBB. 

III. No person shall speak more than ten minutes at a time 
or more than twice on one subject, except as indicated on the 
formal program prepared by the Executiye Committee. 

Eveiy resolution shall be in writing and unless of a formal 
character or presented by a committee, shall be referred by the 
Chair .on presentation, without debate, to an appropriate com- 
mittee for consideration and report. No resolution which is 
neither favorably reported by a committee nor adopted by the 
Association, shall be published in the proceedings of the meetings. 

No legislation shall be reconmiended or approved by the Asso- 
ciation unless there has been a report of a committee thereon, 
and unless such legislation be approved by a two-thirds vote of 
the members of the Association present. 

No resolution complimentary to an officer or member for any 
service performed, paper read or address delivered shall be con- 
sidered by the Association. 

N0N-MH1CBIEB8 : PBIVILBQIBS OF FLOOB. 

lY. Members of the Bar of any foreign country or of any state 
who are not members of the Association may be admitted to the 
privileges of the floor at any meeting of the Association. 

(140) 



BY-LAWB. 141 

BOOKS AMD PAPXBfl OP THB A8800IATI0H. 

V. All papers, addresses and reports read before the Associa- 
tion or submitted to it, shall be lodged with the Secretary and 
become the property of the Association, and shall not be published 
unless by the express direction of the Executiye Committee. 
Gonmiittee reports which have been printed in full in the 
Journal shall not be printed again in the annual volume of the 
Association, but there may be printed therein a brief epitome or 
condensed summary of such a report which may be prepared by 
the chairman of the committee making the report. 

Extra copies, not exceeding one hundred in number, of any 
report, address or paiper read before the Association may be 
printed by the direction of the Executive Committee for the use 
of the author. 

The Executive Committee shall arrange through the Smith- 
sonian Institution, or otherwise, a system of exchanges by which 
the Transactions can be exchanged annually for those of Asso* 
oiations in foreign countries interested in jurisprudence or 
governmental affairs; and the Secretary shall exchange the 
Transactioas for those of the State and Local Bar Associations. 
All books thus acquired shall be boimd and, provided the New 
York City Bar Association consents thereto, shall be deposited in 
the charge of that Association, subject to the call of this Asso- 
ciation, if it ever desires to withdraw or consult them. 

The Secretary shall send one copy of the Annual Report to the 
President of the United States, to the Chief Justice of the 
United States, to each of the Associate Justices of the Supreme 
Court of the United States, to the Library of the State Depart- 
ment, and of the Department of Justice ttiereof, to the Governor, 
to the Chief Judge or the Chief Justice of the court of last 
resort of each state, to the State Librarian thereof, to all public 
law libraries, to college libraries, to other principal libraries in 
the United States, and to such other persons or bodies as the 
Executive Committee may direct. 

OmOBBS AND 00KKITTBB8. 

YI. The terms of ofiSce of all officers elected at any annual 
meeting shall commence at the adjournment of such meeting, 
except the members of the General Council, whose term of office 



142 AMSRIOAN BAB AS800IATI0K. 

shall commeHce immedietely upon their election. Vacancies in 
any office, except the Oeneral Council, occurriAg between the 
annual meetings shall be filled by the Ezecutiye Oommittee ; and 
such interim vacancies in the (General Council shall be filled by 
the Local Coimoil of the state. 

VII. The President shall appoint all committees, including 
special committees, and shall announce the appointments to the 
Secretary, who shall give notice to the persons appointed. 

There shall be appointed annually by the President a oom- 
mittee to be known as the Beception Committee, whose duty it 
shall be to attend immediately before and at the opening of the 
first day's session of the meeting to receive members and delegates 
and introduce them to each other. 

The Committee on Professional Ethics and Qrieyances shall: 

(1) Assist state and local bar associations in all matters 
concerning their activities in respect to the ethics of the pro- 
fession, collect and communicate to the Association information 
concerning such activities and, from time to time, make recom- 
mendations on the subject to the Association. 

(2) Be authorized, in its discretion, to express its opinion con- 
cerning proper professional conduct and particularly concerning 
the application of the Canons of Ethics thereto, when consulted 
by ofiicers or committees of state or local bar associations. Such 
expression of opinion shall only be made after a consideration 
thereof at a meeting of the committee and approval by at least 
a majority of the committee. 

(3) Be authorized to hear, in meeting of the committee, upon 
its own motion, or upon complaint preferred, charges of pro- 
fessional misconduct against any member of this Association. 
As a result of such hearing it may recommend to the Executive 
Committee the forfeiture of the right to membership of any such 
member. All such recommendations shall be accompanied by a 
transcript of the evidence and shall only be made after the 
accused member has been given notice of the nature of the com- 
plaint and after a reasonable opportunity has been accorded him 
or her to submit evidence and argument in defense. 

(4) Forfeiture of the membership of any member as herein- 
before provided shall become effective when approved by a 
majority of all of the members of the Executive Committee and 



BT-LAW8 143 

all interest in the property of the Aflsocifttion of perscms whose 
manbership is so forfeited shall ipso facto vest in the Associa- 
tion. The membership in the Association, and all interest in 
the property of the Association of a member shall ipso facto 
cease upon his disbarment, or a final judgment of conviction of a 
fdony. 

(6) Whenever specific charges of unprofessional conduct shall 
be made against any member of the Bar, whether or not a mem- 
ber of this Associati(m, and the Chairman of the Committee on 
Professional Ethics and Grievances is of the opinion that the 
case is such as requires investigation or prosecution in the courts, 
the same shall be referred by the Chairman to the appropriate 
state or local bar association where such attorney resides and it 
diall be the duty of the Chairman, ia co-operation with the 
local Vice-President of this Association for the state where such 
attorney resides, to urge the appropriate officers or committees 
of state or local bar associations to institute iaquiry into the 
merits of the complaint, and to take such action thereon as may 
be appropriate, with a view to the vindication of lawyers un- 
justly accused, and the discipline by the appropriate tribunal of 
lawyers guilty of unprofessional conduct. 

(6) The committee, with the approval of the Executive Com- 
mittee, shall formulate rules not inconsistent with this by-law 
to give effect to the foregoing provisions, which rules shall be 
published in the annual reports of the Association.* 

VIIL The Treasurer's report shall be examined and audited 
annually before its presentation to the Association, by a licensed 
public accountant designated by the President. 

IX. The Qeneral Council and all standing committees shall 
meet at the time and place of the annual meeting at such hourt 
as their respective chairmen shall appoint. 

The Secretiuy of the Association shall be the Secretary of tha 
General Council. 

X. Special meetings of any committee shall be held at such 
times ^d places as the Chairman thereof may appoint Beason- 
able notice shall be mailed by him to each member. 

^he traveling and other necessary expenses incurred by any 
committee, standing or special, for meetings of such committee 

* Amended August 10, 1022. 



144 AMERICAN BAB ASSOCIATION. 

or otherwise, during the interval between the annual meetings of 
the Association, shall be paid by the Treasurer out of such ap^ 
propriation as the Executive Committee shall have made on 
application in each case in advance of its expenditure. Such 
application shall be made in writing by the chairman of each 
committee thirty days before the mid-winter meeting of the 
Executive Committee and upon a specific budget. 

All committees may have their reports printed by the Secre- 
tary, upon order duly made by the Executive Committee, before 
the aimual meeting of the Association; and any such report con- 
taining any recommendation for action by the Association, 
shall be printed, together with a draft of a bill embodying the 
views of the Committee, whenever legislation shall be proposed. 
Such reports shall be distributed by mail by the Secretary 
to all members of the Association at least thirty days before the 
annual meeting at which such report is proposed to be submitted 

It shall be the duty of each Vice-President and member of 
the General Coimcil to endeavor to procure the enactment by 
the legislature of his state of every law recommended by the 
Association, and the Secretary shall furnish them with copies 
of every recommendation and of every bill recommended and a 
copy of this by-law; and whenever the Association shall by 
resolution recommend the enactment of any law, the Secretary 
shall furnish as soon as possible, a copy of the resolution tp the 
President of each State Bar Association, with the request that 
such Association cooperate with the local vice*president and 
member of the General Council of this Association and the Na^ 
tional Conference of Commissioners on Uniform State I^aws of 
such state in having a bill introduced in the legislature of its state 
in conformity with the recommendation of this Association, and 
use proper means to procure the enactment of the same into law. 
In every state where there is no State Bar Association, a copy of 
such resolution, with a similar request, shall be sent to the 
President of the Bar Association of the principal cities in the 
state; and in every instance where the form of bill has been 
recommended, a copy thereof shall also be sent with the resolution. 



5Y-LAWS 146 

ANNUAL DUES. 

XI. The annual dues shall be payable at the annual meeting 
in advance. If any member neglects to pay his dues on or before 
June 1st following the annual meeting it shall be the duty of 
the Treasurer to serve upon him, by mail, a copy of this by-law 
and notice that unless the dues are paid within one month there- 
after, the default will be reported to the Executive Committee 
which may, without further notice, cause his name to be stricken 
from the roll for non-payment of dues, and his membership and all 
rights in respect thereto will thereupon cease. 

SECTIONS. — GBNE&AL REGULATIONS. 

XII. Each Section shall meet at least once a year in con* 
nection with the meeting of the Association, but not during such 
hours as the Association is in session. 

2. The proceedings of any or all of the Sections may be pub- 
lished from time to time, in the discretion of the Executive Com- 
mittee. 

3. Any member of the Association may enroll himself as 
a member of any Section provided he meets the requirements 
in other respects of the by-laws of such Section. 

4. Matters arising in the meetings of the Association which 
relate to a subject with which a Section is primarily concerned, 
may be referred to such Section. 

5. Appropriations may be made from time to time by the 
Executive Committee of the Association to any Section, to the 
Conference of Bar Association Delegates, and to the National 
Conference of Commissioners on Uniform State Laws; but the 
financial liability of the Association to the Sections or any of 
them, to the Conference of Bar Association Delegates, or to the 
National Conference of Commissioners on Uniform State Laws, 
shall be limited to such appropriations as may be made for them 
and shall cease upon payment to the treasurers of the Sections or 
of the Conferences of the amount so appropriated. 

6. The chairman or other oflFicer of each Section and of the 
Conference of Bar Association Delegates, shall present to the 
Association at its annua] meeting a report in detail ot its work 
and finances up to the preceding June 1st. 



OFFICERS 

1922-1923. 

Pkobsident; 

JOHN W. DAVIS, 16 Broad Street, New York, N. f. 

Segrbtabt, 
W. THOMAS KEMP, 901 Maryland Trust Bidg., Baltimore, Md. 

Tbbasubeb, 
FREDERICK E. WADHAMS, 78 Chapel Street, Albany, N. Y, 

EXBCUTIVB COMMITTEB, 

EX-omcio Hugh H. Brown, Tonopah. Nev. 

Thb SbotSSt' "^^^^ ^- <^«^i88, Detroit, Mich. 

Thb Trbasurbr, John T. Richards, Chicago, 111. 

CoRDBNio A. Sbvebancb, Thomas W. Blackburn, Omaha, Neb. 

Former Proident, Wh-uam Brosmith, Hartford, Conn. 

W 6 Hiiw ^^^' ^- ^' Ellsworth, Jamestown. N. D. 

Chm. Genl. Council, Thomas W. Shblton, Norfolk, Va. 

New Orleans, La. A. T. Stovall, Okolona, Miss. 

SECTION OF LEGAL EDUCATION AND ADMISSIONS TO 

THE BAR. 

Sn^B H. Strawn, Chicago, HI., Chairman, 

John B. Sanborn, Madison, Wis., Secretary and Treasurer. 

SECTION OF PATENT, TRADE-MARK AND COPYRIGHT LAW. 

Chas. E. Brock, Cleveland, Ohio, Chairman, 
Edward S. Rogers, Chicago, 111., Vice-Chairman, 
Alfred M. Allbn, Cincinnati, Ohio, Treasurer, 
Eugene Mason, Washington, D. C, Secretary, 

JUDICIAL SECTION. 

John P. Briscoe, Prince Frederick, Md., Chairman, 
John T. Tucker, Baltimore, Md., Secretary. 

COMPARATIVE LAW BUREAU. 

William W. Smfthebs, Philadelphia, Pa., Chairman, 
Charles S. Lobingier, Shanghai, China, Vice-Chairman. 
Robert P. Shick, Philadelphia, Pa., Secretary, 
Eugene C. Massib, Uiohmond, Va^ Treasurer. 

SECTION OF PUBLIC UTILITY LAW. 

John B. Sanborn, Madison^ Wis., Chairman. 
Chester I. Long, Wichita, Kan., Vice^hairman. 
Edward A. Armstrong, Newark, N. J., Secretary. 
John Randolph Tucker, Richmond, Va., Treasurer. 

(146) 



OFFICERS. 147 



SECTION OF CRIMINAL LAW. 

Flotd E. Thompson, Rock Island, 111., Chairman. 

W. O. Hart. New OtleauB, La., Vice'Chairman. 

Edwin M. Abbott, Philadelphia, Pa., Secretcary and Treasurer. 

SECTION OF CONFERENCE OP BAR ASSOCIATION 

DELEGATES. 

Charum A. Boston, New York, N. Y., Chatrman. 

W. H. H. Piatt, Kansas City, Mo., Vice-Ckainnan. ^ 

Hbrbebt Habust, Chicago, 111., Secretary, 

Nathan William MacChbsnbt, Chicago, Bl., Treasurer. 

NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM 

STATE LAWS. 

Nathan Wiluam MacChesnet, Chicago, Bl., President, 
John R. Haboin, Newark, N. J., Vice-President. 
GwNiGB G. BoGERT, Ithaca, N. Y., Secretary. 
W. 0. Habt, New Orleans, La., Treasurer. 

NATIONAL ASSOCIATION OF ATTORNEYS GENERAL. 

Clifford H. Hii;ion, St. Paul, Minn., President. 

E. T. England, West Virginia, Vice-President. 

Harbt S. Bowman, Santa Fe, New Mexico, Secretary-Treasurer. 



GENERAL COUNCIL 

1922-1923 

state Name Residence 

L0UI8UNA W. 0. Hart, Chairman New Orleans.' 

Alabama E. H. Cabanbsb Birmingham. 

Alaska Ralph £. Robertson Juneau. 

Arizona T. G. Norris Prescott. 

Arkansas Prank PAcn Little Rock. 

Californu Charles Gushing San Franciflco. 

China Stirung Fbssbnden Shanghai. 

Colorado T. J. O'Donnell J3enver. 

Connecticut George E. Beers New Haven. 

Delaware Josiah Marvel Wihnington. 

District of Columbia. . .J. Morrill Chamberlain. .Washington. 

Florida ; Scxxtt M. Loptin JackaonviUe. 

Gborgu S. Price Gilbert Atlanta. 

Hawah Benjamin L. Marx Honolulu. 

Idaho James F. Ailshie Coeur d'Alene. 

Ilunois Frederick A. Brown Chicago. 

Indiana Charles Martindale Indianapolis. 

Iowa Jesse A. Miller Des Moines. 

Kansas Chester I. Long Wichita. 

Kentucky Wm. Marshall Bullitt . .Louisville. 

Maine Arthur Ritchie Belfast. 

Martland John P. Briscoe Prince Frederick 

Massachusetts John Lowell Boston. 

Michigan Wade Millis Detroit. 

Minnesota John Junell Minneapolis. 

Mississippi John D. Sexton Hazlehurst. 

Missouri Jambs H. Harkless Kansas City. 

Montana James A. Walsh Helena. 

Nebraska R. A. Van Orsdel Omaha. 

Nevada Frank A. Norchoss Reno. 

New Hampshire Joseph Madden Keene. 

New Jersey Edward Q. Keasby Newark. 

New Mexico Harry S. Bowman Santa Fe. 

New York Charles S. Whitman New York. 

North Carolina R. L. Smith Albemarle. 

North Dakota Lee Combs Valley City. 

Ohio Frank M. Clevenger Wilmington. 

Oklahoma Frank Wells Oklahoma City. 

Oregon James B. Kerr Portland. 

Pennsylvania Robert P. Shick Philadelphia. 

Philippine Islands H. Lawrence Noble Manila. 

Porto Rico Adolph G. Wolf San Juan. 

Rhode Island Thomas A. Jbnckbs Providence. 

South Carolina John P. Thomas, Jr Columbia. 

South Dakota W. F. Mason Aberdeen. 

Tennessee W. H. Washinoton Nashville. 

Texas W. H. Burges El Paso. 

Utah C. R. Hollingsworth Oeden. 

Vermont George M. Hogan St. Albans. 

ViRGiNU R. R. Prentis Suffolk. 

Washington Charles 0. Bates Tacoma. 

West Virginia J. W. Vandervort Parkersburg. 

Wisconsin W. F. Shea Ashland. 

Wyoming Wm. C. Kinkbad Cheyenne. 

(148) 



VICE-PRESIDENTS 

AND 

MEMBERS OF LOCAL COUNCILS 

ELECTED 1922 
ALABAMA. 

Vice-President, J. K. DIXON Talladega. 

Local Council, LAWRENCE COOPER Huntsville. 

GEORGE A. NELSON Decatur. 

H. U. SIMS Birmingham. 

W. P. ACKER Anniston. 

ALASKA. 

Vice-Preffldent,JOHN R COBB Juneau. 

Local Council, RALPH E. ROBERTSON Juneau. 

HERBERT L. FAULKNER Juneau. 

THOMAS J. DONOHOE Cordova. 

ARIZONA. 

Vice-President, CLEON T. KNAPP Bisbee. 

Local Council, CLIFTON MATHEWS Globe. 

A. I. WINSETT Tucson. 

B. E. MARKS Phoenix. 

0. J. BAUGHN Florence. 

ARKANSAS. 

Vice-President, J. H. HAMITER Little Rock. 

Local Council, 8. H. MANN Forest City. 

W. H. MARTIN Hot Springs. 

J. M. STAYTON Newport. 

C. T. COLEMAN Little Rock, 

CALIFORNIA. 

Vice-President, BRADNER W. LEE Los Angeles. 

Local Council, FRANK M. ANGELLOTTI San Francisco. 

EUGENE DANEY San Diego. 

J. P. CHANDLER Los Angeles. 

BEVERLY L. HODGHEAD San Francisco. 

CHINA. 

Vice-President, CHARLES S. LOBINGIER Shanghai. 

Local Council, ARTHUR B ASSETT . . , Shanghai. 

RALPH A. FROST Hankow. 

ROLAND S. HASKELL Shanghai. 

CHAUNCEY P. HOLCOMB Shanghai. 

COLORADO. 

Vice-President, JOHN A. EWING Denver. 

Local Council, JAMES H. ROTHROCK Colorado Springs. 

JOHN H. FRY ..Denver. 

RALPH L. CARR Antonito. 

WM. E. BUTTON Denvej. 

(149) 



150 AMSBICAK BAB ASSOOIATIOK. 



(CONNECTICUT. 

Vice-President, CHRISTOPHER L. AVERY Groton. 

Local Council, EDWARD M. DAY Hartford. 

HARRISON HEWITT New Haven 

FREDERICK W. HOLDEN Ansonia. 

WILLIAM H. COMLEY Bridgeport. 

DELAWARE. 

Vice-President, JOHN BIGGS Wilmington. 

Local Council, JOHN P. LAFFEY Wilmington. 

R. H. RICHARDS Wilmington. 

S. D. TOWNSEND, JR Wilmington. 

D. J. LAYTON Georgetown. 

DISTRICT OF COLUMBIA. 

Vice-President, GEORGE A. KING Washington. 

Local Council, CHARLES F. CARUSI Washington. 

KATHERINF R. PIKE Washington. 

FREDERICK S. TYLER Washington. 

CHARLES HENRY BUTLER... Washington. 

FLORIDA. 

Vice-President, GEORGE COUPER GIBBS Jacksonville. 

Local Council, M. D. PRICE Miami. 

W. B. S. CRICHLOW Bradentown. 

E. P. AXTELL Jacksonville. 

J. P. STOKES Pensacola. 

GEORGIA. 

Vice-President, JOHN A. SIBLEY Atlanta. 

Local Council, FRANCIS M. OLIVER Savannah. 

ALEX. W. STEPHENS Atlanta. 

ARTHUR G. POWELL Atlanta. 

HARRY S. STROZIER Macon. 

HAWAII. 
Vice-President, ALEX. G. M. ROBERTSON ....Honolulu. 
Local Council, WILLIAM O. SMITH Honolulu. 

CHARLES F. CLEMONS Honolulu. 

LYLE A. DICKEY Lihue. 

ROBBINS B. ANDERSON Honolulu. 

IDAHO. 

Vice-President, JAMES H. HAWLEY Boise. 

Local Council, JAMES R. BOTHWELL Twin Falls. 

JOSEPH H. PETERSON Pocatello. 

FREDERICK S. RANDALL ....Lewiston. 

OLIVER 0. HAGA Boise. 

ILLINOIS. 

Vice-President, ALBERT N. EASTMAN Chicaga 

Local Council, LOGAN HAY Springfield. 

HUGO PAM Chicago. 

JOHN R. MONTGOMERY Chicago. 

PARKER H. HOAG Chicago. 



yiOB-PBB8IDSNT8 AHD LOCAL 00UN0IL8. 151 



INDIANA, 

Vice-President, ROBERT W. McBRIDE Indianapolis. 

Local Council, DANIEL W. SIMMS Lafayette. 

PAUL G. DAVIS Indianapolis. 

HARRY C. SHERIDAN Frankf orf. 

ELMER E. STEVENSON Indianapolis. 

IOWA. 

Vice-President, WESLEY MARTIN Webster City. 

Local Council, HAZEN L SAWYER Keokuk, 

JOHN F. DEVITT Muscatine. 

£. M. CARR Manchester. 

TRUMAN S. STEVENS Hamburg. 

KANSAS. 

Vioe-Preadent, B. S. McANANY Kansas City. 

Local Council, HENRY E. GANSE Emporia. 

PARK PULSIFER Concordia. 

A. M. KEENE Fort Scott. 

WILLIAM OSMOND Great Bend. 

KENTUCKTY 

Vice-President, MATT S. WALTON Lexington. 

Local Council, GEORGE R. HUNT Lexington. 

PERCY N. BOOTH LouisviUe. 

J. E. ROBBINS Mayfield. 

GEORGE B. MARTIN Catlettsburg. 

LOUISIANA. 

Vice-President, T. JONES CROSS Baton Rouge. 

Local Council, W. W. YOUNG New Orleans. 

JESSY BENEDICT GESSNER..New Orleans. 

J. ZACH SPEARING New Orleans. 

WALTER LEMANN Donaldsonville. 

MAINE. 

Vice-President, ISAAC W. DYER Portland. 

Local Council, NORMAN L. B ASSETT Augusta. 

WM. H. LOONEY Portland. 

HANNIBAL E. HAMLIN Ellsworth. 

CYRUS N. BLANCHARD Wilton. 

MARYLAND. 

Vice-President, JAMES P. GORTER Baltimore. 

Local Council, RANDOLPH BARTON, JR Baltimore. 

WILLIAM H. LAMAR RockviUe. 

CHARLES MARKELL Baltimore. 

HERBERT T. TIFFANY Baltimore. 

MASSACHUSETTS. 

Vice-President, SAMUEL WILLISTON Cambridge. 

Local Council, JOHN E. HANNIGAN Boston. 

REGINALD H. SMITH Boston. 

JAMES M. ROSENTHAL Pittsfield. 

ROBERT A. B. COOK WeUesley. 



152 AKBBIOAN BAR AS800IATI0N. 



MICHIGAN. 

Vice-President, OSCAR C. HULL Detroit. 

Local Council, HENRY M. BATES Ann Arbor. 

WESLEY L. NUTTEN Detroit. 

JUSTIN R. WHITING Jackson. 

GEORGE E. NICHOLS Ionia. 

MINNESOTA, 

Vice-Preaident, BRUCE W. SANBORN St. Paul. 

Local Council, HENRY O. CHRI8TENSEN .... Rochester. 

MORRIS B. MITCHELL Minneapolis. 

WM. G. GRAVES St. Paul. 

HUBERT H. D'AUTREMONT..Duluth. 

MISSISSIPPI 

Vice-President, WM. D. ANDERSON Jackson. 

Local Council, J. M. STEVENS Jackson. 

ROBERT B. RICKETTS Jackson. 

A. T. STOVALL Okolona. 

W. H. WATKINS Jackson. 

MISSOURI. 

Vice-President, L. NEWTON WYLDER Kansas City. 

Local Council, CHARLES M. BUSH Kansas City. 

MURAT BOYLE Kansas City. 

JAMES R. CLAIBORNE St. Louis. 

O. L. CRAVENS Neosha. 

MONTANA. 

Vice-President, WM. T. PIGOTT Helena. 

Local Council, MILTON S. GUNN Helena. 

WM. SCALLON Helena. 

W. S. HARTMAN Boseman. 

W. M. JOHNSTON Billings. 

NEBRASKA. 

Vice-President, FRANCIS A. BROGAN Omaha. 

Local Council, HOWARD KENNEDY : . . .Omaha. 

N. H. LOOMIS Omaha. 

C. B. LETTON Lincohi. 

P. E. RANDALL Omaha. 

NEVADA. 

Vice-President, P. A. McCARRAN Reno. 

Local Council, WM. WOODBURN Reno. 

H. R. COOKE Reno. 

ROBERT M. PRICE. Reno. 

WM. FORMAN Tonopah. 

NEW HAMPSHIRE. 

Vice-President, REUBEN E. WALKER Concord. 

Local Council, JAMES W. REMICK Concord. 

LOUIS E. WYMAN Manchester. 

HARRY BINGHAM Littleton. 

ORVILLE E. CAIN Keene. 



YIGB-PBBSroENTS AND LOOAL OOUNOILS. 158 



NEW JERSEY 

Vice-President, JOHN R. HARDIN Newark. 

Local Council, GEO. A. BOURGEOIS Atlantic City. 

RYNIER J. WORTENDYKE . . .Jersey City. 

ADRIAN LYON Perth Amboy. 

SAMUEL H. RICHARDS Camden. 

NEW MEXICO. 

Vice-President, A. M. EDWARDS Santa Fe. 

Local Council, W. C. REID Albuquerque. 

F. T. CHEATAM Taos. 

, FRANK W. CLANCY Santa Fe. 

WM. G. HAYDON East Las Vegas. 

NEW YORK 

Vice-President, HENRY W. TAFT New York. 

Local Council, GEORGE H. BON^v Syracuse. 

WILLIAM H. GRIFFIN New York. 

WILLIAM L. RANSOM New York. 

GEORGE S. TARBELL Ithaca. 

NORTH CAROLINA. 

Vice-President, W. M. PERSON Louisburg. 

Local Council, FRANK THOMPSON Jacksonville. 

JULIA M. ALEXANDER Charlotte. 

R. R. KING, Jr Greensboro. 

MARK BROWN AsheviUe. 

NORTH DAKOTA. 

Vice-President, TRACY R. BANGS Grand Forks. 

Local Council, JOHN KNAUF Jamestown. 

FRANK B. LAMBERT Minot. 

BENTON BAKER Bismarck. 

TORGER SINNESS Devil's Lake. 

OHIO. 

Vice-President, PROVINCE M. POGUE Cincinnati. 

Local Council, M. J. HARTLEY Xenia. 

ALBERT D. ALCORN Cincinnati. 

RALPH S. AMBLER Canton, 

W. R. POMERENE Columbus. 

OKLAHOMA. 

Vice-President, C. B, AMES Oklahoma City. 

Local Council, HORACE HAGAN Tulsa. 

E. D. SLOUGH Ardmore. 

VICTOR H. KULP Norman. 

H. R. DUNCAN Pawhuska. 

OREGON. 

Vice-President, ROBERT TUCKER Portland. 

Local Council, OSCAR HAYTER Dallas. 

RICHARD W. MONTAGUE ....Portland. 

JOHN H. McNARY Salem. 

CHARLES A. HARDY Eugene. 



154 AKBBICAN BAB ASSOOIATION. 



PENNSYLVANIA, 

Vice-Preadent, WM. M. HARGEST Harrisburg. 

Local Council, HENRY S. BORNEMAN PWladelphia. 

A. M. HOLDING Wert Chester. 

VERNON HAZZARD Monongahela. 

F. G. MOORHEAD Beaver. 

PHILIPPINE ISLANDS. 

Vict-Preddent, AMASA O. CROSSFIELD Manila. 

Local Council, EUGENE A. GILMORE Manila. 

JAMES ROSS Manila. 

S. C. SCHWARZKOPF Manila. 

FRANCIS A. DELGADO Manila. 

PORTO RICO. 
Vice-President, MANUEL RODIGUEZ-SERRA. .San Juan. 
Local Council, JOSE HERNANDEZ USERA....San Juan. 

FELIX CORDOVA DAVILA ....San Juan. 

LUIS MUNOZ MORALES San Juan. 

JACINTO TEXIDOR San Juan. 

RHODE ISLAND. 
Vice-President, WILLIAM B. GREENOUGH ....Providence. 
Local Council, CLIFFORD WHIPPLE Providence. 

ELMER S. CHASE Providence. 

FRANCIS B. KEENEY Providence. 

ELISHA C. MO WRY Providence. 

SOUTH CAROLINA. 

Vice-President, SIMEON HYDE Charleston. 

Local Council, ALFRED HUGER Charleston. 

HUNTER A. GIBBES Columbia. 

HERBERT E. GYLES Aiken. 

CORNELIUS OTTS Spartanburg. 

SOUTH DAKOTA. 

Vice-President, E. O. PATTERSON Dallas. 

Local Council, WM. G. RICE Deadwood. 

W. T. BRUELL Redfield. 

TORE TEIGEN Sioux Falls. 

A. K. GARDNER Huron. 

TENNESSEE. 

Vice-President, WALTER P. ARMSTRONG Memphis. 

Local Council, LOVICK P. MILES Memphis. 

W. L. OWEN Covington. 

JOHN H. DeWTTT Nashville. 

J. HARRY PRICE KnoxviUe. 

TEXAS 

Vice-President, W. A. WRIGHT San Angclo. 

Local Council, WM. N. BONNER Wichita Falls. 

HARRY P. LAWTHER Dallas. 

J. M. BURFORD Mt. Pleasant. 

THOMAS H. FRANKLIN San Antonio. 



VI0S-PBB8IDBNTS AND LOCAL COUNCILS. 155 



UTAH. 

Vice-Preadent, W. I. SNYDER Salt Lake City. 

Local Coimca, JOEL NIBLEY Salt Lake City. 

E. O. LEE Salt Lake City. 

DAVID JENSEN OgdeiL 

JAMES N. KIMBALL Ogden. 

VERMONT. 

Vice-Ptesident, GEO. M. POWERS Morriaville. 

Local Council, ROBERT E. HEALY Bexmington. 

FRANK D. THOMPSON Barton. 

HERBERT G. BARBER Brattleboro. 

CHARLES I. BUTTON Middlebur>-. 

VIRGINI/L 

Vice-Preaident, R. E. PEYTON, Je Richmond. 

Local Council, EUGENE C. MASSIE Richmond. 

JAMES R.CATON Alexandria. 

E. R. WILLIAMS Richmond. 

C. M. CHICHESTER Richmond. 

WASHINGTON. 

Vice-President, GEO. H. RUMMENS Seattle. 

Local Council, THEODORE B. BRUNER Aberdeen. 

FRANK T. POST Spokane. 

CHARLES E. SHEPARD Seattle. 

LEE C. DELLE Yakima. 

WEST VIRGINA. 

Vice-President, HARVEY F. SMITH Clarksburg. 

Local Council, JOSEPH WARREN MADDEN.. Morgantown. 

CHARLES LYNCH Clarkiurg. 

JOHN J. D. PRESTON Charleston. 

E. T.ENGLAND Charleston. 

WISCONSIN. 

Vice-President, WILLIAM D. THOMPSON Racine, 

Local Council, ARTHUR A. McLEOD Madison. 

LOUIS A. LECHER Milwaukee. 

JOHN E. McCONNELL La Crosse. 

MAX SCHOETZ, Jb Milwaukee. 

WYOMING. 

Vice-President, RALPH KIMBALL Cheyenne. 

Local Council, GEO. E. BRIMMER Rawlins. 

JESSE E. JACOBSON Wheathmd. 

MORRIS E. CORTHELL Laramie. 

WM. E. MULLEN Cheyenne. 



STANDING COMMITTEES * 

1922-1923. 

Ck)MMERCE, Trade and Commercial Law. 

WM. H. H. PIATT, Kansas City, Miasoiiri. 
JULIUS HENRY COHEN, New York, New York. 
PROVINCE M. POGUE, Cincinnati, Ohio. 
WILLIAM DENMAN, San Francisco, CaUfora^i. 
RANDOLPH BARTON, JR., Baltimore, Maryland. 

International Law« 

JAMES BROWN SCOTT, Washington, District of Ccrfumbia. 
THOMAS BURKE, Seattle, Washington. 
GEORGE W. WICKERSHAM, New York, New York. 
ROBERT LANSING, Washington, District of Columbia. 
MANLEY 0. HUDSON, Cambridge, Massachusetts. 

Insurance Law. 

JAMES C. JONES, St. Louis, Missouri. 
JAMES B. KERR, Portland, Oregon. 
SCOTT M. LOFTIN, Jacksonville, Florida. 
JAMES H. McJNTOSH, New York, New York. 
THOMAS B. GAY, Richmond, Virginia. 

Jurisprxtdench and Law Reform. 

EVERETT P. WHEELER, New York, New York. 
HENRY W. TAFT, New York, New York. 
THOMAS J. O'DONNELL, Denver, Colorado. 
JOHN R. HARDIN, Newark, New Jersey. 
TORE TEIGEN, Sioux Falls, South Dakota. 
WILLIAM HUNTER, Tampa, Florida. 
MERRILL MOORES, Indianapolis, Indiana. 
FRANK H. NORCROSS, Reno, Nevada. 
GEORGE E. BEERS, New Haven, Connecticut. 
PAUL HOWLAND, Cleveland, Ohio. 
WM. MARSHALL BULLITT, Louisville, Kentucky. 
JAMES M. BECK, Washington, District of Columbia. 
MITCHELL D. FOLLANSBEE, Chicago, Illinois. 
WILLIAM L. MARBURY, Baltimore, Maryland. 
ROGER SHERMAN, Chicago, lUinois. 

Legal Aid. 

REGINALD HEBER SMITH, Boston, Massachusetts. 
FORREST C. DONNELL, St. Louis, Missouri. 
MARY F. LATHROP, Denver, Colorado. 
ROBERT P. SHICK, Philadelphia, Pennsylvania. 
ALLEN WARDWELL, New York, New York. 

* In the list of committees, the first named member is Chairman unless 
otherwise stated. 

(166) 



STANDING 00MHITTB8. 15? 



PBorsssiONAL Ethics and Gribvakcbs. 

THOMAS FRANCIS HOWE, Chicago, lUinois. 

CHARLES THADDEUS TERRY, New York, New York. 

MORRIS A. SOPER, Baltimore, Maryland. 

HENRY U. SIMS. Birmingham. Alabama. 

HENRY S. DRINKER, JR., Philadelphia, Pennsylvania. 

ABMIRAI/rT AKD MARITIME LaW. 

CHARLES C. BURLINGHAM, New York, New York. 
FITZ-HENRY SMITH, JR., Boston, Massachusetts. 
HARVEY D. GOULDER, Cleveland, Ohio. 
EDWARD J. McCUTCHEN, San Francisco, California. 
JOSEPH W. HENDERSON, Philadelphia, Pennsylvania. 

PuBucmr. 

FREDERICK A. BROWN, Chicago, Illinois. 
CHARLES S. CUSHING. San Francisco, California. 
HENRY P. DART, JR., New Orleans, Louisiana. 
HAZEN I. SAWYER, Keokuk, Iowa. 
WILLIAM A. HAYES, Milwaukee, Wisconsin. 

Publications. 

WILLIAM LEE RAWLS, Baltimore, Maryland. 
ROBERT PENINGTON, Wilmington, Delaware. 
WILLIAM M. HARGEST, Harrisburg, Pennsylvania. 
ROBERT E. PEYTON, JR., Richmond, Vu^inia. 
PRESTON C. WEST, Tulsa, Oklahoma. 



NoTEwoBTHT Changes in Statute Law. 

JOSEPH P. CHAMBERLAIN, New York, New York. 
CHARLES M. HEPBURN, Bloomington, Indiana. 
SHIPPEN LEWIS, Philadelphia, Pennsylvania. 
WELLINGTON D. RANKIN, Helena, Montana. 
BRUCE W. SANBORN, St. Paul, Minnesota. 



Memorials. 

W. THOMAS KEMP, Baltimore, Maryland. 
BRADNER W. LEE, Los Angeles, California. 
ROBERT W. STAYTON, Corpus Christi, Texas. 
FLORENCE KING, Chicago, IlUnois. 
HOLLINS N. RANDOLPH, Atlanta, Georgia. 



Membership. 

SIMEON E. BALDWIN, New Haven, Connecticut. 
MOORFIELD STOREY, Boston, Massachusetts. 
FRANCIS RAWLE, Philadelphia, Pennsylvania. 
HENRY ST. GEORGE TUCKER, Lexington, Virginia. 
GEORGE R. PECK, Chicago, Illinois. 
ALTON B. PARKER, New York, New York. 



158 AHBBIOAN BAB ASSOOIATION. 

JACOB M. DICKINSON, Chicago, nimois. 

FREDERICK W. LEHMANN, St Louis, MiflBOuri. 

FRANK B. KELLOGG, St. P^ul, Minnesota. 

PETER W. MELDRIM, Savannah, Geoi^ia. 

ELIHU ROOT, New York, New York. 

WALTER GEORGE SMITH, Philadelphia, Penn^lvania. 

GEORGE T. PAGE, Chicago. Illinois. 

HAMPTON L. CARSON, Philadelphia, Pennaylvania. 

CORDENIO A. SEVERANCE, St. Paul, Minnesota. 

DWTBICl DiBICrOBS. 

1st District— GEORGE B. YOUNG, Montpelier, Yerniont. 
2nd District-FREDERICK £. WADHAMS, Albany, N. Y.(Cbainnan). 

3rd District^WILLIAM W. GORDON, Savannah, Geoigia. 

4th District^FRANK M. GLEVENGER, Wilmington, Ohio. 

5th District— LOGAN HAY, Springfield, Illinois. 

6th Districlr—EUGENE McQUILLIN, St. Louis, Missouri. 

7th Distridr-HAROLD M. STEPHENS, Salt Lake Qty, Utah. 

8th District— HERBERT L. FAULKNER, Juneau, Alaska. 

9th Districtr—WALTER F. FREAR, Honolulu, Hawaii. 
10th District-GEORGE A. MALCOLM, Manila, PhiUppme Islands. 
11th District— CHARLES HARTZELL, San Juan, Porto Rico. 

Nora. — ^Under new memberihip plans, the foUowing districts have been 
established : 

I. Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, Con- 
necticut ; 
II. New York, PennsylYanIa, New Jersey, Delaware, MSaryland, Dlttrlot 
of Columbia ; 

III. Virginia, North Carolina, South Carolina, Georgia, Florida, Alabama, 

Mississippi. Tennessee ; 

IV. Michigan, Onio, Indiana, West Virginia, Kentucky; 

V. Illinois, Wisconsin, Minnesota, Iowa, North Dakota, South Dakota, 

Nebraska * 
VI. Missouri, Arkansas, Louisiana, Texas, New Mexico, Oklahoma, Kansas; 
VII. Colorado, Wyoming, Montana, Idaho, Washington, Oregon, California, 

Nevada, Utah, Ariiona ; 
VIII. Territory of Alaska ; 
IX. Hawaii Territory; 
X. Philippine Islands; 
XI. Porto Rico. 



SPECIAL COMMITTEES* 

1922-1923. 

Uniform Judicial Procedubb. 

THOMAS W. SHELTON, Norfolk, Virginia. 
JACOB M. DICKINSON, Chicago, Illinoia. 
FREDERICK W. LEHMANN, St. Louis, Missouri. 
ROSCOE POUND, Cambridge, Massachusetts. 
FRANK IRVINE, Ithaca, New York. 

FiNANGB. 

FREDERICK E. WADHAMS, Albany, New York. 
JAMES R. CATON, Alexandria, Virginia. 
CHARLES MARTINDALE, Indianapolis, Indiana. 

Rbprbsbntatives of American Bar Assocution to Conferbncb of 

Delegates. 

JOHN H. VOORHEES, Sioux Falls, South Dakota. 
CHARLES A. BOSTON, New York, New York. 
GURNEY E. NEWLIN, Los Angeles, CaUfomia. 
THOMAS L. MARSHALL, Chicago, IlUnois. 
JOSIAH MARVEL, Wilmington, Delaware. 

Change of Date of Presidential Inauguration. 

WILLIAM L. PUTNAM, Boston, Massachusetts. 
WILLIAM C. KINKEAD, Cheyenne, Wyoming. 
LEVI COOKE, Washington, District of Cohimbia. 
RALPH S. AMBLER, Canton, Ohio. 
AUBREY L. BROOKS,~Gre*ensboro, North Carolina. 

Classification and Restatement of the Law. 

THOMAS I. PARKINSON, New York, New York. 
ROSCOE POUND, Cambridge. Massachusetts. 
GEORGE B. ROSE, Little Rock, Arkansas. 
EDWIN M. BORCHARD, New Haven, Connecticut. 
HENRY M. BATES, Ann Arbor, Michigan. 
GEORGE W. PEPPER, Philadelphia, Penni^Ivania. 
MIDDLETON BEAMAN, Washington, District of Columbia. 
STILES W. BURR, St. Paul, Minnesota. 
EDMUND F. TRABUE, Louisville, Kentucky. 

Law of Aeronautics. 

WILLIAM P. MACCRACKEN, JR., Chicago, lUinois. 
GEORGE G. BOGERT, Ithaca, New York. 
W. JEFFERSON DAVIS, San Diego, CaUfomia. 
PHILIP A. CARROLL, New York, New York. 
DANIEL W. IDDINGS, Dayton, Ohio. 



* In the list of committees, the first named member is Chairman unless 
otherwise stated. 

6 (150) 



160 AMEBIOAN BAR ASSOOIATION. 



Removal of Government Liens ok Real Estate. 

JOHN T. RICHARDS, Chicago, Illinois. 

JOHN A. CHAMBLISS, Chattanooga, Tennessee. 

GEORGE R. HUNT, Lexington, Kentucky. 

Markino Grave or Former Chief Justice Salmon P. Chase. 

SELDEN P. SPENCER, St. Louis, Missouri. 
ANDREW SQUIRE, Cleveland, Ohio. 
GUY W. MALLON, Cincinnati, Ohio. 

Federal Taxation. 

CHARLES HENRY BUTLER, Wiscasset, Maine. 
MURRAY M. SHOEMAKER, Cincinnati, Ohio. 
GEORGE M. MORRIS, Washington, District of Columbia. 
MORRIS L. JOHNSTON, Chicago," Illinois. 
LOUIS A. LECHER, Milwaukee, Wisconsin. 

Law Enforcement. 

CHARLES S. WHITMAN, New York, New York. 
MARCUS A. KAVANAGH, Chicago, Illinois. 
CHARLES W. FARNHAM, St. Paul, Minnesota. 
WADE H. ELLIS,^ashington, District of Columbia. 
ANNETTE A. ADAMS, San Francisco, California. 

AmKBICAK CmZKNSHIP. 

R. E. L. SANER, Dallas, Texas. 

WALTER GEORGE SMITH, Philadelphia, Pennsylvania. 

ANDREW A. BRUCE, Chicago, Illinois. 

WALLACE McCAMANT, Portland, Oregon. 

JOHN LORD O'BRUN, Buffalo, New York. 

Judicial Ethics. 

WILLIAM HOWARD TAFT, Washington, District of Columbia. 

LESLIE C. CORNISH, Augusta, Maine. 

ROBERT von MOSCHZlSKER, Philadelphia, Pennsylvania. 

CHARLES A. BOSTON, New York, New York. 

GARRET W. McENERNEY, San Francisco, California. 



APPENDIX 



ADDRESS OF THE PRESIDENT 

Bt 

• CORDENIO A. SEVERANCE, 

OP MINirsSOTA. 

THE CONSTITUTION AND INDIVIDUALISM. 

The American Bar Association is meeting today in the city 
of the Argonauts. For the second time in its history it has come 
nearly half way across the United States. Although still much 
further from Manila or the extremity of the Aleutian Islands 
than from Maine^ it has made a fair start. Its meeting place is 
in a city that both historically and in the present typifies the 
American spirit that has made our nation so great. This city, 
from the time of the American occupation, while engagingly cos- 
mopolitan, has always been dominated by the strong, virile people 
of our race. By reason of its beauty and charm, its glorious moun- 
tains and lovely valleys, we are too apt to think of California 
only as a land of romance and ease and dolce fao' mente. The 
Creator did much for this charmed region, but the pioneer Ameri- 
can men and women who painfully toiled across the burning 
deserts and over the snow-capped mountains, or across the mias- 
mic Isthmus, laid the foundations, and their descendants have 
reared the superstructure which makes California today not only 
a beauty spot, but a great commonwealth. The moimtains and 
the valleys were always here. They were not newly discovered 
in 1849. The people or the descendants of the people of a great 
European nation, at one time the mistress of nearly all the 
Americans, arrived long before. But it was only when American 
civilization and the free constitution and laws of our country came 
to bless this land that the real California as we know it today, 
had its birth. From that time this great state has unfolded until 
today not only in its beauty, but in its strength and many re- 
sources it is the admiration of the world. The pioneers brought 
with them all those sturdy qualities of mind and body and those 
traditions of free government which have been so conspicuous 

(163) 



164 ADDRESS OF THE PRESIDENT. 

from the time little scattered bands settled along the shores of 
the Atlantic and began pushing themselves westward, step by 
step, turning the wilderness into a garden. They brought with 
them that which enables them in common with all their fellow- 
Americans, to live in peace and enjoy that which with their heads 
and hands they earn, the Constitution of the United States with 
the personal and religious liberty it guaranteest They were 
people with an inherited reverence and respect for law. But for 
this and the orderly government so insured, the desert would have 
remained as it was from the beginning of time, and the waters 
which now enrich it so that it can support an empire, would 
have continued to flow unvexed to the sea. In these times of 
doubt and speculation when some good men and many bad men 
are giving utterance to distrust and dissatisfaction with what we 
are glad to denominate American institutions,«,where better can 
we come to renew our faith in the works our fathers wrought? 
When men and women assemble as we do today, to consider the 
problems that confront us, and to consult together for their solu- 
tion, when we accept the constant challenge to weigh in the 
balance the value of the government tmder which we live, it is 
the part of wisdom to turn our eyes backward to see whether the 
system we have has served us well or ill. Has it given us in a 
large measure happiness and contentment, or the reverse? Has 
the influence of our institutions been felt upon the world at large ? 
Have our theories of government coidmended themselves to 
thoughtful men of other lands? Has our example been followed 
or rejected? The answer to these questions may at least give 
pause to those who spend their strength in denunciation and 
whose eyes are always fixed upon the few imperfect stones un- 
conscious of the sublime beauty of the great edifice as a whole. 
Many questions of vital moment were considered and determined 
by that remarkable body of men who sat in Philadelphia through 
the summer of 1787. They were wise men, so wise that Thomas 
Jefferson, who was in Paris at the time as the Minister of the 
Colonies with an exaggeration easily pardonable, called it an 
assemblage of demi-gods. They were students of history and 
learned in the science of government as it had developed up to 
that time. They were zealous for the protection of the freedom 
that had been won through a long and destructive war, but at thl§ 



^ OOBDBKIO A. 8E7ERAN0B. 165 

same time appreciative of the necessity of erecting a gpvemment 
with the strength to maintain itself against foes either external 
or internal. To recall only a few of their conclusions. They 
determined against a monarchy or an execntiye chosen for life. 
They provided for a bi-cameral legislatare. Washington, when 
asked why the Congress was made to consist of two bodies rather 
than one, having in mind the sadden waves of passion that might 
sweep over an assembly, responded with a homely illustration. 
He said it was for the same reason that one poured his tea into 
the saucer — ^to permit it to cool off. Bemembering the failures of 
pure democracies, the Convention established a republican, repre- 
sentative form of government, with frequent elections to the lower 
House and terms of service in the Senate that are not too long to ' 
keep that body reasonably responsible to well-considered, popular 
will. The members of the House of Representatives were dis- 
tributed according to population. The control of the purse was 
left with that House, as it has the sole right to inaugurate revenue 
legislation. There was withheld from the executive the power 
to plunge the country into all the horrors and miseries of war. 
They provided that he could bind the nation by no treaty unless 
it was assented to by two-thirds vote of the Senate. While a 
veto was given the President it was not absolute but was sub- 
ject to be overruled by a two-thirds vote in each House of the 
Congress. In many other respects they limited the powers of 
public servants. Further enumeration of these checks is xm- 
necessary, except that above all they established what Webster 
in his great reply to Hayne denominated as the keystone of the 
arch, a Supreme Court in which was vested the last and ultimate 
decision of all questions arising under the Constitution and the 
laws enacted pursuant thereto. We are so accustomed to these 
things that we often fail to reflect that many of them were novel 
in the world at that time. Even England, the freest of all 
nations, had a parliament which in its lower house was in no 
sense representative, as a member from Old Samm, with only 
two or three electors, had an equal voice with a knight of the 
most populous shire in the kingdom ; and in the election of this 
house only a fragment of the adult population had a share, large 
sections of the free men of England having no vote. The powers 
of the Commons were crippled by the absolute veto of an heredi^ 



166 ADDRESS OF THE PBE8IDENT. 

tary house.. Today, after a series of reform acts^ her parliament 
is representative and the House of Lords, while it still exists, is 
so emasculated that it cannot prevent, except temporarily, the 
enactment of laws passed by the Commons. Treaties are now 
submitted to Parliament for approval. Since that date there 
have grown up the great self-governing Dominions, our intimate 
friend and neighbor, Canada, on the north ; Australia, New 2^a- 
land, South Africa, each governed by its own laws enacted by its 
own parliament, aad in no sense tied to Qreat Britain except 
by the bonds of affection and self-interest. And finally Ireland, 
whose sons have taken so important a part in governing other 
countries, including our own, has the immediate prospect of be- 
coming like the other free nations in the British Empire, a self- 
governing people. In 17Si France was still an absolute mon- 
archy, although it is interesting to recall that its courts had with 
indifferent success attempted at times to interpose against 
tyranny. Its people were so oppressed that in its revolution — 
largely caused, or at least hastened, by the spirit of liberty, re- 
flected back from the new world — the pendulum swung so far in 
the opposite direction as to produce chaos. This was followed 
by the inevitable reaction into a dictatorship, succeeded by two 
monarchies, a short-lived republic, a second Empire, and finally 
the enduring republic, the glorious deeds of whose liberty-loving 
people during the last decade have excited the admiration of the 
world. Germany consisted of a large number of petty states, 
with an enslaved population under absolute masters, who hired 
out their subjects as during our Bevolution, to fight battles in 
which they had no concern. After the attempted revolutions of 
1848, which were quickly suppressed, Germans of liberal belief 
swarmed to America to enjoy our free government. Then for a 
score of years the German states devoted themselves under the 
leadership of these various sovereigns, to killing each other off, 
with the resultant creation of a dominant power in one state, and 
the establishment of an empire with a parliament of shadowy 
authority. Finally 131 years after our Constitutional Conven- 
tion, the Elaiser, as an eminent American expressed it, dropped 
his crown and ran, and the occupants of the petty thrones blew 
away, like the cards in Alice in Wonderland, and a republic was 
established. Its permanency is still to be proved. But all be- 



OOBDBNIO A. BEVERA.NOE. 167 

Uevers in popular government throughout the world hope that 
it may, in spite of all attempts at reaction, maintain itself among 
the free nations of the world. 

At the end of the eighteenth century, and long after, Italy 
was truly termed a geographical expression, but now that beaU" 
tifnl land, with its marvelous history, while nominally a mon- 
archy, is in fact a self-governing nation, and its blue skies are 
over a united people freed from the domination of the stranger. 
Poland, then partitioned and destroyed, is now a republic, as is 
Bohemia, that land of poetry and music, whose republican con- 
stitution was largely drawn in the old city of Philadelphia within 
sight of Independence Hall. The Turk had his bloody hand upon 
all the lands from Constantinople to Belgrade and the Adriatic. 
The Balkan states are now free, governed by their own parlia- 
ments, and the Southern Slavs, who were so long under the 
domination of the Hapsburgs, are at last reunited with their 
blood brothers, the Serbs, under a constitution containing a Bill 
of Bights similar to our own. Austria and Hungary have like- 
wise discarded the Hapsburgs. Thus Switzerland, that home of 
free men for centuries, no longer remains an oasis in a desert of 
despotism. Portugal is a republic, and Spain is governed by 
its parliament. The Scandinavian countries are genuinely demo- 
cratic in fact, and only Russia, of all the autocracies that cursed 
the continent at the end of the eighteenth century, is still denied 
the benefit of a government resting upon the consent of the 
governed. Since 1787 all of the states of Central and South 
America have attained their independence, and have modeled 
their constitutions largely after that of the United States, and a 
number of them have made great economic and social progress. 
Even in the far East, Japan now has its parliament functioning 
with ever increasing powers, and the great Empire of China, in 
which lives nearly a quarter of the human race, has cast out its 
foreign monarchs, and chiefly under the leadership of young men 
educated in American universities, is painfully, through disorder 
and almost chaos, struggling toward the status of a 8elf-goverq|pg 
republic. It is a noteworthy fact that its most influential citizen 
has within the past few weeks advocated a federal republic 
modeled after our own, its ancient provinces to have the same 
status as American states. When we thus contemplate the grad- 



168 ADDBBSS OF THE PRE8IDSNT. 

ual adoption by people of diverse races and historic background 
of most of the fundamental principles^ and in many cases the 
actual forms^ embodied in the American Constitution^ it would 
seem that the j)icture might cause thpse who are seeking its 
overthrow or substantial modification^ to hesitate and consider 
whether such a remarkable concensus of human opinion should 
be disregarded. It is not indelicate for an American to recall 
that the marvelous progress of our country, attained through 
individual freedom and not based upon its suppression, has excited 
the admiration, and in some instances, the envy of the people of 
other lands. But, say the critics, it is mere assumption to at- 
tribute the tremendous development of the United States to its 
constitution and laws. America, they say, possesses an equable 
climate, a profusion of minerals, vast forests, and fertile lands. 
These blessings, or some of them, were denied to portions of the 
older world. But is the suggestion of these critics an answer? 
There are other virgin lands with equal or greater natural riches, 
endowed in all respects as abundantly as ours. But where can 
one point to an expansion and achievement in all lines, both 
individual and collective, accompanied by freedom of action and 
the resultant human happiness and contentment comparable to 
that of America ? The nearest approach is in the great dominions 
of that mother land of the English-speaking race whose children 
have carried civilization and order into every comer of the earth 
where they have planted their flag. But it must be remembered 
that in the main the theories of free government of America and 
the nations of the British Empire had a common origin. The 
germ of our legislative system was the old witenagemot. The 
guarantees wrung from a tyrannical monarch at Bunnymede, 
the principles for which Hampden stood, the declarations in the 
Bill of Rights in 1689, were and are our common heritage. Free 
government had in a large measure been enjoyed under the 
colonial charters. It was because of the denial to the people of 
the Colonies of these fundamentals of free government by an 
ar]|^trary king and a parliament partly corrupt and largely sub- 
servient, that Americans broke their bonds with the mother 
country. Had England then heeded the words of Chatham, 
Burke and Pox, the history of the world in the last century and 
a half would have been far different. It is a matter for supreme 



OOBDBinO A. SBYEEAKOB. 160 

gratification that in these latter years^ when the government of 
Great Britain has been entrusted to the political heirs of the school 
of Fox, that the attitude of the Colonies has been approved by the 
people of that great Empire. The attempt made in the eighteenth 
century to subject free citizens on this continent to a political 
control in which they had no voice, has met with their condem- 
nation. Sentiment alike in the free nations of the British Em- 
pire and in the XTnited States is now for orderly liberty under 
laws made by the people in the exercise of powers only restricted 
by the people themselves. It naturally follows that any differences 
that may arise from time to time between those nations and ours 
will be settled as they have been in the past half century, either 
by negotiations or by trial in a legal tribunal, in which impartial 
justice will be rendered. The adjustment or settlement of such 
disputes by any other method is unthinkable. The wager of 
battle will not be revived in such case. The same prophecy may 
safely be made as to the future relations between the people of 
America and those ancient friends, the citizens of the free repub- 
lic of France. The only serious^misunderstandings between that 
country and ours arose during the first and second empires. 
Those empires have disappeared, and in spite of attempts by un- 
friendly propaganda to establish the contrary, we know, and the 
world knows, that imperialistic designs on the part of France 
disappeared with the last empire. In the harmony between 
Great Britain, France and America rests the future peace of the 
world. Those who seek to disturb that harmony are the enemies 
of mankind. To insure the government of this world by law the 
youth of these peoples gave their lives, and today sleep upon 
innumerable hillsides from the Channel to the Vosges. Since 
the last meeting of this Association, the most significant public 
event has been the signing of a treaty between the great maritime 
powers, providing for the limitation of naval armaments. It is 
a matter of profound satisfaction that this result was achieved 
upon the initiative of a distinguished American lawyer, the 
Secretary of State, and that his chief coadjutor was the leader of 
the American Bar, our dearly loved friend, Elihu Boot. Thus the 
great powers have in effect said that in the future any matter of 
difference between them shall be settled as private men compose 
or litigiite their disagreements, i^^d that there shall be no longer 



170 ADDKESS OF THE PBSSIDBNT. 

aggressive warfare. Only such naval farce was retained as seemed 
necessary to repel attack. This does not mean absolute disarma- 
ment. The wise men who conducted the negotiations resulting 
in this treaty had vividly before them the memory of the great 
war, and realized while they were well disposed to peace and 
government by law, there were other people in whom as yet a 
like confidence could not be reposed. A proposition of absolute 
disarmament either on land or sea, would be like the suggestion 
of the dismissal of all the police force and other law enforcement 
officers, simply because the great majority of mankind is law- 
abiding. Hence tiie proposal of the Secretary of State which 
was adopted by the Conference, embodied that element of common 
sense and appreciation of possibilities which always moves the 
lawyer in advising his client. Until the millennium, account 
must be taken, both in international and domestic affairs, of 
the wicked and ill-disposed. Beautiful theories evolved from the 
easy chairs of dreamers must give way before the practical neces- 
sities indicated by human experience. In the eighteenth centary 
Diderot, with his great intellect^ conceived a scientific theory of 
a state. Catherine of Bussia invited him to St. Petersburg, 
where for days he expounded to her his brilliant conceptions. In 
the end she said : 

M. Diderot, I have listened with the greatest pleasure to all that 
your brilliant intelligence has imparted. With all your great principles 
(which I understand very well), one could make fine books out very 
bad business. You forget in all your plans for reform the difference in 
our positions. You only work on paper which endures all things; it 
opposes no obstacle either to your imagination or your pen, but I, poor 
Empress that I am. work upon the human skin, which is irritable and 
ticklish to a very oifferent degree. 

It has been the predominating trait of our race that in matters 
of law and government it has had the saving grace of common 
sense. This led to the limitations in our constitution. Perfec- 
tion in this world is unattainable. The best that can be hoped 
is an approximation to the perfect. A government in which all 
legislation will be wise and all administration perfect is far be- 
yond the possibility of human kind. The making and executi«n 
of laws and the administration of justice are all subject to human 
imperfections and human limitations. That any system may be 
and will be improved as defects are made apparent, is sure, so 
long as the best informed and most patriotic are in control. In 



COBDENIO A. SEVERAKOE. 171 

civilized nations^ gov^nment and the laws and the interpretar 
tion of the laws are not static. Conditions change^ and with these 
changes new applications of old fundamental conceptions and 
rules must be made. This is an orderly evolution. Its most 
conspicuous example, perhaps, lies in the growth of the common 
law, and in the application of fundamental doctrines embodied in 
our constitution to the changing conditions of modem life. As 
said by the great jurist who announced the opinion of the 
Supreme Court in the Debs case: 

Constitutional provisions do not change, but their operation extends 
to new matters as the modes of business and the habits of life of the 
people vary with each succeeding year. 

Far different from this are the revolutionary demands of the 
mere theorist. Because of some minor failure he does not hesitate 
to denounce principles of law and government evolved from the 
best thought of human kind and tested by experience. The 
ancient landmarks he disregards. The value of human ambition 
which has lead to human achievement is discarded by the disciples 
of a certain school of political philosophy. The incentive of the 
hope of personal success, which history has shown to be absolutely 
essential in the development of the world, means nothing to them. 
The fact that men will not labor with diligence unless they can en- 
joy the fruits of their toil, is ignored by those who preach commun- 
ism and denounce the exaltation of the individual. They forget 
that the selfishness which would take from the industrious that 
which he has achieved, for distribution among the whole, is far 
greater than the selfishness of the man who seeks to possess a 
bit of land for the exclusive use of himself and his family. The 
old doctrine that the Englishman's home is his castle means 
more than that it shall not be invaded by governmental processes. 
Behind and beyond that, it signifies that there is something that 
is sacred to him and his wife and children, because he has attained 
it. This does not at all imply that there are no limitations to 
the right to property or to the power its possession may give. 
Again, we have in the law the interposition of the same doctrine 
of reason and common sense. While a citizen may have that 
which is his, he may not so use it as to injure his neighbor. To 
cite a familiar example: Freedom of commerce throughout our 
country was one of the impelling causes for the adoption of our 



172 ADDRESS OF THB PBE8IDBNT. 

constitution.' In Gibbons against Ogden, the Supreme Court 
preserved this right from impairment. In modem days, when 
transportation is so largely conducted by rail^ no new principle of 
law was required to authorize the establishment by the govern- 
ment of fair^ non-discriminatory rates and charges. This is 
nothing more than the application of the old regulations fixing 
the fares of the watermen on the Thames^ but the right of the 
owner to possess his property in the railroads, and to protection 
against fixing rates at so low a figure as to result in confiscation, 
is preserved. In this way abuses that existed in the early days 
of railroading through which* one locality was destroyed and an- 
other built up, or one shipper was prevented from conducting 
lawful competition against another by discriminatory rate^ have 
been prevented, and no constitutional or laMrful rights have been 
impinged upon. The community is given the advantage of the 
efforts of the managers of competitive railways to improve their 
service, and the latter have the incentive of personal success to 
incite them to their best efforts in serving the public. "Unlees the 
rates are inordinately high, excellence of service is ordinarily 
more important than the amount of the charges. Experience in 
Europe and America alike has demonstrated the futility of 
expecting such service when this element of personal ambition 
on the part of the operators of these systems, is withdrawn, and 
competitive conditions destroyed, as is the case under govern- 
mental operation. 

It is unnecessary to enlarge upon the innumerable instances 
in which our Constitution has been found adapted to new situa- 
tions and to conditions in modem life which were undreamed of 
by its makers without in any way striking down the philosophic 
conceptions upon which it is based, or impairment of individual 
achievement. The steamboat, the railroad, the telegraph, tho 
telephone, the pipe line have come, and the powers granted to the 
federal government with all their limitations, have been found 
ample and sufficient for their proper regulation. The airplane is 
with us, and laws governing its use are in process of development, 
as they are in the case of the still later radio. All this has been 
accomplished without the repression of genius or undue interfer- 
ence with personal freedom. With a like recognition of individual 
rights which are often directly affected by a correct distribution 



COBDBNIO A. 8SVEBAN0E. 173 

and balance of jurisdictions^ after infinite debate and repeated 
judicial decisions^ the fundamental principles differentiating be- 
tween the powers of the federal government and those of the 
states are fairly well established. This delimination of the line 
between federal and state authority has been worked out by our 
great court of last resort^ save only as to the single question of 
the right of a state to secede from the union^ which compelled a 
resort to the arbitrament of arms. The result of that fratricidal 
war was to settle forever the perpetuity of our union^ and the 
supremacy of our constitution. The scars of that conflict have 
long since healed. The bitterness it engendered has been wiped 
away^ and in the gallant armies that threw back across the Marne 
at Chateau Thierry the hosts of autocracy^ and who, step by step, 
drove out the invader in those days of carnage in the Argonne, 
there was no distinction either in gallantry or patriotism be^ 
tween the sons and grandsons of the men who in the last century 
marched under the Stars and Bars, and those who followed the 
Stars and Stripes. 

This great charter, having shown itself strong enough to with- 
stand the shock of wars, external and internal, and having stood 
over our people as a shield and protection in time of peace, while 
we have grown from a nation of three millions living adjacent 
to the Atlantic seaboard, to one of one hundred and ten millions, 
stretching from ocean to ocean, and taking in the islands of the 
sea, it would seem as though debate as to its value should have 
been concluded. 3ut the very guarantees of a free press and free 
speech, with the opportunity thus given for criticism by men of 
varying convictions or desires, makes its preservation a matter 
of solicitude and constant concern to the patriot and lover of hi.«< 
country. But aside from direct attack by the dissatisfied, the 
wanton or the vicious, which will be discussed later, there have 
grown up tendencies of thought, which, unless averted, may 
destroy the true balance between the rights of the states and those 
of the federal government, and at the same time weaken individ- 
ual morale by breeding a reliance upon government in the place 
of the personal self-dependence of the citizens which has been the 
mainspring of our national development. Owing to our vast 
expansion and the intimate inter-communication between states 
and the right of the citizens of the several states to equal privi- 



174 ADDRESS OF TKB PBJBSIDSNT. 

leges in each of the other states the natural result has been to 
eliminate state lines in many ways. It could not well be other* 
wise^ and the framers of the constitution so intended. Our 
transportation systems^ many of them reaching half way across 
the continent^ carrying principally a conmierce interstate in char- 
acter^ must necessarily^ if regulation is to be effective, be in the 
main^ under the control of the union. The great industrial con- 
cerns of the country, whose trade is nationwide, and whose un- 
checked power would tend to subvert the liberties of the people, 
must be subject to like control, for the protection of the people 
of all states alike ; but we are too apt to forget that there is a vast 
field in which the public interest requires that there shall be no 
substitution of federal for local supervision or legislation, and fur- 
ther, that in the absence of a clear necessity, there should be no 
interposition by either. Following great wars there is; as compared 
with normal times, always a tendency to an expansion of govern- 
mental power, with the resultant increased interference with the 
freedom of the individual. It has been markedly the case since 
the World War, The mobilization of men and money with the 
necessary temporary legislation increasing the powers of the 
executive and minimizing for the time the personal rights of the 
citizen, produces an abnormal condition of the public mind. In 
ancient days, when autocracy was the rule, war was the usual 
state. To a free people in modern days, war is abhorrent. It is 
appealed to as the last resort only for the purpose of bringing a 
just peace and the individual comfort and well-being that are the 
concomitants of peace. When the emergency passes with the 
ending of the war, there should be a speedy reversion to peace- 
time conditions. While war is in progress everything is sub- 
ordinated to the one purpose of a speedy victory for our armies. 
At the call of the nation men offer up their lives for its preserva- 
tion. The people submit to having their food, their clothing, 
the sales of their products and an infinite number of other matters 
controlled by government. The intimate connection with govern- 
ment thus established has a reflex action in causing the people to 
lose their self-dependence and to look to the federal government 
for things which, in a normal state of peace, are entirely of 
state or individual concern. The President and the Congress are 
asked to interfere in purely local matters; the federal treasury 



OOBDBNIO A. BSVBBANOB. 175 

is raided^ or attempted to be raided in the interest of things in 
no way national in character. Federal aid in money is demanded 
to supplement funds voted by the states for improvements or to 
pay the cost of state activities. Groups of people even seek this 
aid in support of enterprises which are in effect individual. The 
congressman or senator is looked upon as successful or otherwise 
in the measure that he is able to secure appropriations benefiting 
only the whole or part of his immediate constituency. Legisla- 
tion sometimes degenerates into a race between the members to 
see who can secure the most. In this way taxes that are imposed 
for the general benefit are many times directly or indirectly di- 
verted to private use. The tax-payer in one state is compelled to 
bear a part of the burdens of some distant part of the country in 
which neither the nation nor he himself has any but the most re^ 
mote interest. All this tends to breed extravagance. People who 
scan their tax bills are apt to insist upon economy in public expen- 
ditures which are in the charge of local officials and to bring pres- 
sure to produce economical administration. But they seem to 
feel that these supplemental funds so secured from the general 
government in Washington are like manna from Heaven, for- 
getting that they represent the fruits of tiie labors of their fellow- 
citizens. This so-called federal aid turned over by the general 
government to the states without any control as to its expenditure, 
has already amounted to hundreds of millions of dollars a year. 
Even that, however, is preferable to the establishment of addi- 
tional bureaus at the seat of government with thousands of em- 
ployees and inspectors to oversee the expenditure of these funds. 
Public opinion should be built up to check these constant raids 
upon the federal treasury. The courts are powerless in the 
matter, and the only remedy is in the development of a sound 
public sentiment in the direction of local and individual self- 
reliance. Neither communities nor citizens should stand like 
beggars, hat in hand, asking alms from Washington. There had 
also developed both before the World War and in a more marked 
degree since, a movement for the establishment of bureaus and 
commissions not only in the federal government, but in the 
various states, which are given greater or less powers of interfer- 
ence with the freedom of action of individuals, and in some cases 
tend to make them more dependent upon the aid of the govern- 



176 ADDRBSS OF THB PBB8IDBNT. 

ment or the state> and less upon their own exertions. With the 
increasing complexity of our civilization^ some of these commis- 
sions art suitable, proper and necessary, and if conducted with 
due regard to constitutional rights, are valuable, but in many 
instances they are distinctly mischievous, and improperly hamper 
private initiative. They create an enormous roll of ofiBcers and 
employees supported at public expense. In certain cases, while 
there is a reasonable excuse for their exiatence, the advantage 
flowing from the exercise of their functions is of far less value 
than their cost, even leaving to one side their unfortunate effect 
upon public morale. It is as true now as when it was first uttered 
that the people are governed best who are governed least. This 
country has not grown to be the greatest, most powerful and 
happiest in the world through the activities of boards or bureaus, 
but only through the efforts and genius of its virile, strong and 
intelligent people, with the assurance given by the constitution 
that they shall enjoy the results of their labor. We have made 
this marvelous progress by respecting the rights of the individual 
recited in the Declaration of Independence. If we do not check 
the tendency to set up a bureaucratic government, centering in 
Washington, we invite disaster. The United States is not, as 
was asserted of the late Oerman Empire, an entity free from 
moral or other restraints over, above and apart from the people, 
but it is a composite of the people themfielves. Its powers are not 
unlimited. The Oovemment possesses only those from which the 
people parted for the general welfare, and its activities should 
be confined within the narrow limits consistent with the per- 
formance of proper governmental duties. The wise men who 
wrote the constitution did not intend to place the citizen in lead- 
ing strings. The government is the servant of the people. It is 
instituted not to suppress, but to render certain their liberties. 
The constitutions, both federal and state, are full of provisions 
setting bounds to what their respective legislatures may do. In 
spite of these limitations, the growth of the so-called police power 
in these later days is a matter of profound concern to all lovers of 
our country. If legislators are permitted to run riot under the 
pretended exercise of this power, the constitutional guarantees 
for the protection of liberty and property will be destroyed. If 
contracts between individuals truly private in character can be 



OOBDBNIO A. SBVBBANCB. 177 

rendered valueless by the fiat of a bare majority of a legislative 
body^ under the plea of emergency or necessity, and i| the legisla- 
ture is permitted to be the unhampered judge of the existence 
of such necessity or emergency, what becomes of the constitutional 
provision rendering such contracts immune from legislative at- 
tack ? If a legislature can by a simple resolution declare that a 
business or occupation never before deemed to be affected with 
a public interest and thus subject to regulation, is in fact so 
affected, what limits are there to what it may do? The enlarge- 
ment of the scope of the police power in recent years has gone far 
in the direction of a communistic state. That this has not been 
intended in general, either by legislatures or courts, is imdoubted. 
But that its effect has been toward that result is likewise beyond 
reasonable dispute. Borne was not built in a day, and a constitu- 
tion can be overthrown in time as surely by gradual encroach- 
ments as by sudden revolution. Every undue weakening of its 
inhibitions prohibiting the invasion of the rights of the indi- 
vidual,* is a step towards state supremacy, and each piece of 
legislation of this character forms a precedent for another. If 
we believe in the principles upon which our government was 
founded^ we should scrutinize with jealous care new proposals 
which affect the liberty of personal action, to see whether they 
square with the ancient doctrines voiced by our fathers in the 
constitution. The exposition and enforcement of these limita- 
tions^ whenever they are exceeded, is the function of the judiciary. 
Therefore judges must not only have character and lofty ethical 
views, but they must have learning, not only in what may be 
termed the technique of the legal profession, but a broad educa- 
tion in the history and great fundamental principles of govern- 
ment. They should be informed as to the theories upon ^ich the 
states of antiquity were based, and be enlightened as to the ele- 
ments which gave strength and the weaknesses which led to 
downfall. They should have a thorough knowledge of the growth 
of constitutional law in England and the American Colonies 
previous to our revolution; — all this and more should be the 
equipment of our judiciary so that they may know 'from the 
results of human experience, the value of and the necessity for 
the maintenance of the great safeguards embraced in our constitu- 
tion and the amendments, setting bounds to the action of the 



i 



178 ADDRESS 01* THE PBBBIDBNT. 

(^Bcials of the states and the nation. Only with this thorough 
training are they fitted to apply to concrete cases as they arise, 
the protection secured to ns by the great charter of onr liberties. 
The Bench is recruited from the Bar; an ill educated and unin- 
formed Bar thus necessarily must result in an ill-equipped Bench. 
It was not to enable lawyers to make more money by intelligently 
practicing their profession^ that this Association and its co-ordi- 
nated bodies^ the state and local associations, adopted the resolu- 
tions with which you are all familiar, looking to a better 
preparation for the practice of the law. Such incentive would 
have been imworthy of the Bar, and would have done violence to 
its honorable traditions. The reason lay far deeper than that. It 
was to enable the Bar and Bench to administer with wisdom and 
intelligence American justice between man and man, and between 
the citizen and the state. More and more such administration 
involves the application of the provisions of our constitution. 

This fact was recognized a third of a century ago by Mr. Justice 
Miller, who in one of his masterly lectures said : 

The importance of a thorough knowledge of constitutional law to 
those who propose hereafter to practice the profession of the law in 

this country, can hardly be exaggerated The time has come 

when the Constitution and laws of the United States are not the mere 
theoretical object of the thou^ts of the statesman, the lawyer or the 
man of afifairs; for the operations of its government now reach to the 
recesses of every man's business, and force themselves upon every man's 
thoughts. 

In times of unrest and loose thinking, such as we are going 
through at present, the clear definition and enunciation of these 
principles as they come to be applied from day to day, are of the 
highest importance. The judges must not only have the firmness 
to state with definiteness and certainty that the individual rights 
of the citizen may not be encroached upon either by the executive 
or by a temporary majority in a congress or a legislature; that all 
the checks and balances between the departments of the federal 
government, between the union and the states, and between both 
these governments and the people must be preserved in their 
integrity) but in addition they must be possessed of the learning 
to make clear the reasons for their conclusions. Those to whom 
these restraints are irksome and who believe in a parliamentary 
form of government with unlimited powers, recognize clearly that 



OOBDBNIO A. SBVERAKOB. 179 

their easiest method of attack is to assail the power of the courts. 

In 1821 Chief Justice Marshall said : 

An attack upon the judiciary is in fact an attack up(m the union. 
The judicial department is well imdestood to be that throiigh which 
the government may be attacked most successfully because it is without 
patronage, and, of course, without power.' And it is equally well under- 
stood that every subtraction from its jurisdiction is a vital wound to the 
government itself. The attack upon it, therefore, is a masked battery 
aimed at the government itself. 

In the earlier days of the republic the exercise of its proper 
jurisdiction by the Supreme Court called forth heated denuncia- 
tions by executives and legislators, whose activities it sought to 
restrain within the limits prescribed for them. At least two 
presidents of the United States refused to follow its decisions. 
Politicians and newspapers assailed the great tribunal, but serene 
and confident in the conclusiveness of their reasoning, Marshall, 
Story and their colleagues went their way, and unaffected by 
popular clamor, did their duty. Mr. Justice Story in the Dart^ 
mouth College case, said : 

It is not for the judges to listen to the voice of persuasive eloquence 
or popular appeal. We have nothing to do but pronounce the law as 
we find it, and having done this, our justification must be left to the 
impartial judgment of our country. 

After the passions and controversies of the hour had passed, 
this impartial judgment was rendered, and these great judges took 
their place among the immortals. 

In all of Shakespeare there is no more splendid passage than 

that describing the meeting between the old Chief Justice of 

England and the young King, who in his lawless youth had been 

committed for contempt for striking the judge when upon the 

Bench. The Chief Justice said in his justification : 

Your Highness pleased* to foiiget my place. 
The majesty and power of law and justice. 
The image of the King whom I presented. 
And struck me in my very seat of judgment; 
Whereon, as an offender to your father, 
I gave bold way to my authority 
And did commit you. 

The king replied : 

You are right, justice, and you weish this well; 
Therefore still bear the balance andthe sword; 
.... You did commit me 
For which I do commit into your hand 
The unstain'd sword that you have used to bear, 
With this remembrance, Uiat you use the same 
With the Uke bold, just, and impartial spirit. 
As you have done 'gainst me. 



180 ADDRESS OF THE FBBSIDBNT. 

We have no kingly office, but the judges represent the words 
and the spirit of our constitution, and have, with rare exceptions, 
enforced them with a ^' bold, just and impartial spirit,'' and for 
this they pire held in honor by the good men and women of our 
country whose liberties they have preserved. Nevertheless, we 
have lately seen a renewal in certain quarters of these attacks 
upon the judiciary. Large bodies of men have resented their 
judgments when adverse to their contentions, and in some cases 
by formal resolutions have stated that they would determine for 
themselves the constitutionality of laws and would not regard 
themselves as bound by the decisions of the courts in that respect. 
There have been widespread complaints against and attempts at 
times successful, to limit by legislation the jurisdiction of the 
courts in affording protection 'Against the invasion of personal 
rights. In an address delivereu before the American Federation 
of Labor on Flag Day, a senator of the United States denounced 
the action of the Supreme Court in holding acts of the CoQgress 
and of state legislatures unconstitutional as pure usurpation 
and the exercise of a power not granted by the constitution. He 
later repeated this address upon the floor of the Senate. He 
termed the judges a " judicial oligarchy.'' 

And said : 

The time has come when we must put the axe to the root of this 
monstrous growth upon the body of our government. The usurped 
power of the federal courts must Se taken away, and the federal juoges 
must be made responsible to the public will. 

He further said : 

What I propose is that Congrees shall be enabled to override this 
usurped judicial veto, and to declare finally the public policy, just as 
it has the power to override the 'Presidential veto so that we may 
realize in fact the fundamental purpose of the Constitution as declared 
in Article 1, Section 1, " that all lei^islative powers herein granted shall 
be vested in a Congress of the United States which shall consist of a 
Senate and House o? Representatives." 

His remedy was a proposed constitutional amendment to read 
as follows : 

That no inferior federal judge shall set aside a law of Congress on 
the ground that it is unconstitutional. That if the Supreme Court 
assumes to decide any law unconstitutional, or by interpretation under- 
takes to assert a public policy at variance with the statutory declaration 
of Congress, whidi alone under our system is authorized to determine 
the public policies of government, the Congress may, by repassing 
the law, nulUfy the action of the court. 



OOBDBNIO ▲. BBYBaiNOB. 181 

It will be noted that the senator made two fundamental propo- 
sitions : First, that the power exerted by the court in declaring 
statutes unconstitutional is a usurped power not granted by the 
Constitution of the United States; and second, that Congress 
alone under our system has authority to determine the public 
policies of government. As I had occasion to point out in a recent 
address before one of the state bar associations, we challenge the 
correctness of both these statements. That the power is not one 
that is usurped is clear. It had been exercised by the courts of 
Massachusetts, New York, Virginia and North Carolina as to 
statutes in derogation of provisions of their respective constitu- 
tions before the federal constitution was adopted. There can be 
no question that these decisicms were within the knowledge of the 
members of the federal convention, as was the fact that it bad 
been recognized by the Continental Congress, which, by resolution 
requested the courts of law and equity of the states to decide and 
adjudge according to the treaty of peace between the United 
States and Great Britain, anything in acts or parts of acts of 
the legislatures of the states to the contrary notwithstanding. 
In the notes of the Constitutional Convention it appears, from 
remarks of numerous members, that it was contemplated that 
such power should be exercised by the federal courts, and its 
necessity was fully appreciated. Madison said in the convention 
that he 

considered the difTerence between a system founded on the legidatxirea 
only, and one founded on the people, to be the true difference between a 

league or treaty, and a constitution A law violatins a 

treaty ratified by a pre-existing law might be ^'espected by the judges 
as a law, though an unwise ana perfidious one. A law violating a con- 
stitution established by the people themselves would be considered 
by the judges as null and void. 

In the Pennsylvania Convention called to ratify the constitu- 
tion, James Wilson, afterwards Justice of the Supreme Court, 
said: 

I had occasion on a former day to state that the power of the Con- 
stitution was paramount to the power of the legislature acting under 
that Constitution, for it is possible that the legislature enacting in that 
capacity may tranagress the bounds assigned to it, sikI an act may pass 
through the usual mode, notwithstanding that tranqgression ^ but when it 
comes to be discussed before the judges— when they consider itf prin- 
ciples and find it to be incompatible with the superior power of the 
Constitution it is their duty to pronounce it void. 

Many similar contemporaneous expressions might be quoted. 



182 ADDRESS OF THB PRE6IDBNT. 

This power was fully expounded in the Pederalisi. Ouriouflly 
it was approved in a letter written by Jefferson to Madison from 
Paris on June 20, 1787, while the convention was in session. 

The Constitution was thus adopted with the complete knowl- 
edge that the judicial power included the duty of sustaining con- 
stitutional provisions as against legislation either federal or state 
that contravened them. This power was only attacked whto 
some years later its exercise ran counter to what was deemed by 
individuals or parties desirable in spite of the Constitution. 

For many years past, however, the exercise of this jurisdiction 
by the courts has met with general acquiescence, and criticisms, 
when made, have ordinarily been as to the conclusions of the 
courts rather than a denial of their authority. 

The second proposition asserted by the senator to the effect 
that Congress alone under our system has authority to determine 
the public policies of government, is not true without the addi- 
tion that such public policies must be determined in obedience 
to the limitations in the Constitution. He reads out of Article 1, 
Section 1, relating to the legislative powers of Congress the words, 
" herein granted," and treats this section as though it read that 
"all legislative powers shall be v«sted in the Congress.^' This 
fundamental error vitiates his conclusion. 

The Congress has no unlimited power of legislation. There 
are certain specific matters concerning which it may legislate. 
All others are reserved to the states or the people. If the proposed 
constitutional amendment should be adopted, not only would 
Congress have unlimited right to deal with subjects that have 
always been looked upon as belonging to the states and reserved 
for their exclusive cognizance, but it could wipe out the Bill of 
Bights and all the protection that it gives to the people. Thought- 
ful men are impressed with the danger of the growth of federal 
power in matters of local concern, even when Congress is acting 
within the scope of the present Constitution. The proposal is to 
withdraw all guaranties and limitations whatsoever. It is a 
matter of real concern that the Federation of Labor in its resolu- 
tions passed following this address, approved the proposed amend- 
ment and added another resolution to the effect that amendments 
to the constitution should be made easier. Such action by the 
representatives of so large an organization is symptomatic of a 



OORDBNIO A. SBVERAHOB. 183 

very serious condition of the public mind. In substance this 
proposal is not a mere amendment^ but if adopted would work a 
revolution in our system of government. Heretofore the United 
States has always been held and considered to be a government 
of limited powers. If such an amendment should be adopted^ 
the powers of the Congress would be unlimited^ and a mere 
majority of that body^ composed largely of men not learned in 
the law could overthrow all tiie hard-won safeguards of individual 
liberty obtained by brave men down through the centuries from 
Magna Charta to the day when they were put in lasting form in 
the federal and state constitutions. 
De Tocqueville, in his " Democracy in America/^ said : 

The power of the judiciary to declare a law invalid if it trausceiids 
the powers given by the Constitution, is one of the strongest barriers 
ever devised against the tyrannies of political assemblies. 

It must not be overlooked that the proposed amendment em- 
bodies in itself no limitations. It applies even where the viola- 
tion of the Constitution is so clear that it is not even arguable. 
As it cannot be pretended that the principle involved in the law 
so repassed can have any general application^ it follows that each 
time a bill in violation of some constitutional limitation became 
a law by re^passing it in Congress, it would result in nullifying 
such limitation as to a particular subject, leaving it in full vigor 
as to all other matters. It involves the abandonm^it of all con- 
tinuity of decision upon constitutional questions, and the same 
underlying principle might, and probably would, be determined 
differently by successive congresses. It amounts to submission of 
a proposition to amend the Constitution pro tanto to a vote of the 
electors in the various congressional districts where the contest 
would be fought out over this and all other pending issues in the 
election of members of Congress. It thus possesses even less 
virtue than the proposed recall of judicial decisions by direct vote 
of the people, which was advocated some years ago by a man who 
was dearly loved by his countrymen, and but for whose advocacy 
the scheme would have attracted no attention whatever. As it 
was, even with the prestige of his great name, it could not stand 
discussion and is no longer heard of. It contained no appeal to 
the good common sense of America. 

While it is inconceivable that such amendment can receive 
any substantial support in Congress, or that it could in any event 



184 ADDRESS OF THB PBSSIDKNT. 

secure the votes of three-fourths of the states^ still the mere fact 
that a senator of the United States advances such a proposition 
emphasizes the necessity of a wider study of the constitution and 
a fuller appreciation by the people, of its value. It is only one 
of a series of attacks that are being made upon established insti- 
tutions. The state of mind of the world for the last few years has 
been revolutionary. People have been restive under any restraint, 
no matter how salutary. They have sought change for the sake of 
change. There has been a feeling that in some way all inequalities 
and unhappiness could be cured by government. While this senti- 
ment has made less headway in our free America than in other 
lands, it has even here become so widespread that it should be a 
matter of serious concern to every patriot. 

Recent investigations, both official and unofficial, have demon- 
strated the shocking extent to which direct agitation, in part 
public, in part secret, against our whole system of government has 
gone. Large organizations of inen extending to every industrial 
center in America, are at work carrying on an active propaganda 
directed to the eventual destruction of our constitution and the 
substitution therefor of a government such as has brought chaos 
to the great Russian people. The principal leader of one branch 
of this movement has recently returned from Moscow, bringing 
instructions and aid from the oligarchy which is there in power. 
It has been publicly stated by the President of the American 
Federation of Labor that this organization so affiliated with Soviet 
Russia, has at least a thousand men well supported and com- 
pensated, working in the interests of this movement and penetrat- 
ing every section of the republic. The speeches made at the Third 
Internationale in Russia, which was attended by representatives 
from this country, advocated not only open propaganda in other 
countries of the world, including our own, but the secret commis- 
sion of unlawful acts and the circulation of literature forbidden 
by law. 

One of the American delegates in a public utterance at Moscow 
used this language with reference to the publications of his party 
in America : 

All the organs of the press (the majority of which at the present 
moment are published unaeiground) are under the immediate control of 
the directive bodies of the party. All local organisational procedures 



OOBDKNIO ▲. SBVESAKOB. 185 

are eooidinated with the central organization. Increased and unre- 
mitting attention is given to the observance of party discipline. 

And agaiB he said : 

For the purpose of augmenting the success of propaganda, the o^ter 
of gravity of party work was lifted to the plants, mills, and mines. 
For that purpose, agents of agitation were appointed wherever there 
were memiberB of the party. Tliey were guides in Communist watch* 
words and ideas. 

Another delegate thus paid his respects to the patriotism of 

the American Legion : 

The demobilised soldiers (who for the most part did not see the 
battle front), under the direction of former officers (sons of various 
bankers and rich men), have organised themselves into ** the American 
Legion " for the purpose of protecting " the Constitution and free insti- 
tutions of America." This last is accomplished by riotous attacks on the 
headquarters of Communists and trade-unions and the beating up of 
active workmen. 

Under extremely difficult conditions the Communists in America have 
had to reorganise themselves from half-legal and open organisations into 
absolutely imderground organisations. 

Three delegates united in publishing a report of the American 

Communist partj^ and in this pronunciamento occurs the 

following: 

The class-conscious workers of America more and more turn toward 
^ou. fellow workers of Soviet Russia. Your example is to them a lesson ^ 
m the revolutionary struggle, for which American bourgeois d&noonay 
and the working class oiAmerica are both organizing and jireparing. 
.... They expect that the 2nd Congress ol the Communist Inter- 
national will <*«tahliwh the general stafif of the world revolution. Long 
hve Soviet Russia 1 Long live the Dictatcnrsftiip of the Proletariat! 
Long Uve the III International I 

The secretary of the Communist party of America published a 
statement in which^ among other things, he said : 

"My" countiy, America, formerly the most progresnve country in 
the world, has now become the most reactionary; the impending Ameri- 
can revolution will be more cruel and severe than the revolutions in 
Russia and Crermany. 

These expressions are, of course, those of extremists. They 
and their associates now comprise a very small percentage of the 
people of this country. But in addition to the so-called under- 
ground publications, the book stalls on the street comers in our 
cities are coTered with literature written and published to stir 
up hatred, produce discontent, and in many cases, in a more or 
less blind and furtive way, incite to violence. One publishing 
house alone advertises an output of many thousands of books and 
pamphlets per day, the greater part of which are of this character. 



186 ADDRB8S OF THE PBBSIBBNT. 

The influ^ice of such publications^ especially upon immature 
minds, is necessarily tremendous. Influenced, no doubt, by such 
vicious teachings, sabotage has largely increased and the law 
has been flouted by bands of men in different parts of the coun- 
try at times of industrial troubles. To a large extent these 
propagandists are foreign bom, although with shame it must be 
confessed that many of them were bom and reared under the free 
institutions of America. The Chairman of the Executive Council 
of the National Civic Federation in a pamphlet published as 
late as June 24th, of the present year said : 

A committee of The National Civic Fe^ieration^ which has spent two 
years studying the revolutionary movements in this country, was greatly 
disturbed to find the extent to which they have penetrated aU groups 
making up our national life. Not the least disquieting feature of the 
situation is the fact that so many men in high places have little realiza^ 
tion of what is going on about them. For instance, it was learned that, 
under the veiy dome of the Capitol at Washington, there was an organi- 
zation made up of a hundred and fifty secretaries to senators and repre- 
sentatives which was completely in the hands of the Reds. It had been 
in existence for two years, holding its meetings in the caucus room of 
the House, and yet few persons, even in Washington, had ever heard 
of it. But Moscow and the Red " liberal " press of all nations had heard 
of it and knew and exploited the fact that the ** U. S. Congress Jr." had 
voted in favor of the recognition of Soviet Russia. 

Innumerable instances of a similar nature and equally disturbing in 
churches, colleges, social reform and other agencies have been cited by 
the committee, all i^owing the same widespread ignorance on the part 
of public' men and women with r^ard to the pernicious activities of 
these subversive elements. This is all the more significant when it is 
realised the the governing bodies of such institutions are generally 
from the rank of our most successful business men. 

In so far as this literature does not incite to violence or revolu- 
tion, where it does not proceed beyond the limits of permissible 
debate, its authors are protected by the guaranty of a free press 
vouchsafed to them by the very constitution they are seeking to 
destroy. When they go beyond that limit, it is the duty of every 
lover of his country to uphold the hands of our government 
officials, and see that such activities are punished to the full 
extent of the law, and that such agitators as are foreign born be 
deported to the place from whence they came. But these remedies 
are not enough. From the foundation of our government our 
doors have been freely open to the nations of all Europe. In the 
early days we were the only important state contending for the 
privilege of a change of allegiance. Our second war with Great 
Britain very largely grew out of contentions over that question. 



OOBDSNIO A. SEYBBANQB. 187 

We have latterly placed some restriction upon the right to come 
to our shores, but these Jrestrictions operate more efficiently to 
control the quantity than the quality of the immigrant. We have 
been too careless of the priceless value of our heritage. We have 
too freely received into our citizenship without investigation^ 
men whose chief mission has been to plot and agitate against the 
free institutions xmder which they have enjoyed liberty and oppor- 
tunity such as were undreamed of in the lands of their birth. We 
have unloaded and turned loose in America great numbers of 
men whose departure from their native land was for their coun- 
try's good. This must end. The inquiry into the fitness of a 
man to become a citizen of this republic, should begin before, not 
after, he comes here. It should not be a perfunctory inquiry, but 
as thorough as humanly possible. Our government should know 
the type of person who presents himself as a self-invited guest 
in our house. We still have room for the honest, industrious and 
law-loving from other lands. We have no place for any other. , 
Forty years ago a great American poet wrote these words : 

Oh Liberty, white Goddess I Is it well 

To leave the gates unguarded? On thy breast 

Fold Sorrow's children, soothe the hurts of fate, 

Lift the down-trodden, but with hands of steel 

Stay those who to thv sacred portals come 

To waste the gifts of freedom. Have a care 

Lest from thy brow the clustered stars be torn 

And trampled in the dust. For so of old 

The thronging Goth and Vandal trampled Rome, 

And where the temples of the Csesars stood 

The lean wolf unmolested made her lair. 

But mere prosecutions, supervision of immigration and depor- 
tation of the imfit will not solve the question. 

The agitator who keeps himself immime from prosecution by 
confining his attacks upon our institutions to stirring up discon- 
tent, arraying men against their fellow citizens, assailing the law 
and its ministers and denouncing the limitations of our constitu- 
tion, may, in many cases do more harm than the anarchist, the 
very violence of whose teachings usually repels rather than con- 
vinces. Such men are the curbstone orators, the parlor socialists 
and the like. They are continually at work; they always have 
abimdant time. All that can be said and all that can be done by 
these apostles of destruction will go for naught if the conscience 
and intelligence of America ia aroused to the danger. A people 



188 ABDRBSS OF THB PBIKIDBNT. 

who^ in spite of racial origin^ were so fused into one in the terrible 
crucible of war when assailed from without, will not, il awakened, 
permit either the destruction or the diminution of that freedom 
our fathers won. The laws we have must be respected. Impartial 
justice must be rendered in our courts. It must be made clear 
that personal ideas of government are no excuse for crime and 
that all the power of the states and the nation will be used to 
insure the constitutional right of law-abiding people to live and 
work in peace and security. But beyond all this, the assailant 
of our free institutions must not go imanswered. The vast influ- 
ence of the American Bar should be massed against this challenge 
to civilization. In co-operation and harmony with other patriotic 
organizations we should inaugurate and carry on a nation-wide 
movement to the end that the men and women of our generation 
and the youth of the coming generation be shown the value of that 
liberty under the law which our forefathers established. Upon 
the rostrum, in the press, and above all, in our schools of every 
grade, our people should be taught that our constitution and 
laws and the courts that interpret them do not destroy but pre- 
serve their liberties. Misconceptions caused by lawless agitators 
should be corrected. Ill-considered prejudice must be made to 
give way to reason. It should be emphasized that in our free land 
with its laws made by the people and for the people there is no 
place for so-called class consciousness, and that we will tolerate 
no government by classes ; that universal suffrage entails universal 
responsibility. By bringing home these fundamental truths we 
shall be f aithfiQ to our oaths to support our incomparable Consti- 
tution, and will make certain that without impairment it will in 
the future, as in the past, guard and save the freedom of all our 
people. 



THE DEVELOPMENT OF THE LAW OF WATERS IN 

THE WEST. 

BY 

LUCIEN SHAW, 

CHIEF JUBTIGB OF CAUFOBNIA. 

It is necessary to define and limit the subject of this address. 
The region known as the West is frequently understood to 
include all the territory west of the Allegheny Mountains. 
This embraces at least twenty*three states, each haying laws on 
nearly every subject relating to land that are in soni« respects 
different from those of the others. The part of it which was 
acquired from Mexico in 1848 by the treaty of Guadalupe 
Hidalgo is divided into five states, not including parts of 
Colorado and Wyonung, and each of these also have laws on the 
subject that differ from the others in some particulars. I am 
not familiar with the details of these laws in any of the states 
except California. It was the state first created out of the 
Mexican acquisition and in it the law of waters first became 
important enough to be the subject of judicial decision. The 
laws of the neighboring states have generally followed the course 
of dedsion in California. I shall, therefore, confine myself to 
the discussion of the law of waters in California. 

The development of that law in California is a part of the 
history of the development and growth of the state. The first 
industry pursued here, that of placer mining, required the liberal 
use of water to separate the gold from the soil, sand and gravel 
in which it was embedded. It was confined* to the mining re- 
gions. The later and more widespread industry of agriculture 
required still larger quantities of water to grow the annual crops, 
trees and vines to which the climate and soil were so well adapted. 

The recent use of water to produce electrical energy adds 
another valuable use to that element. The increase in popula- 
tion and the corresponding increase in these various industries 
have produced a demand for water which it has taxed all possible 
sources to supply. The controversies arising from these condi- 

(180) 



190 LAW OP WATBES IN THB WEST. 

tions have been taken to the courts and have compelled decisions 
upon various phases of the law of waters. Our reports contain 
more decisions on that subject than on any other. 

In determining this law the courts have had to take into 
consideration the different purposes for which water is used, the 
various methods of applying and diverting it, and the different 
sources from which the water can be obtained^ The subjects of 
the decisions on water law may be classified as follows : 1. The 
use of water for mining purposes on government land, giving 
rise to a peculiar phase of the development of the law, which 
terminated at the close of the Civil War and with the passage 
of the act of Congress in 1866, presently to be described; 2. The 
use of water for the irrigation of land, and its diversion from 
streams on land in private ownership ; 3. The extraction and use 
of the subterranean supplies of water. Another uese has recently 
begun; the inipounding of water in reservoirs for the double pur- 
pose of producing electrical energy and conserving the run-off 
during the rainy season and while the mountain snows are 
melting, for use in irrigation after it has passed through the 
power plants. The law with regard to this use, in so far as it 
may require any modification of settled rules, is now in process 
of development and it does not come within the scope of a paper 
devoted to the past. The first subject to be discussed, therefore, 
is the law regarding the use of water in the mining regions 
during the first sixteen years after the settlement of the state in 
1849. 

No more spectacular migration of human beings was ever 
known in history than that of 1849 from all parts of the world 
to the gold-bearing lands of California. They came from 
everywhere, but chiefly from the eastern part of the ITnited 
States. They found a country different in topography, and in 
elimatic conditions, from those from which they came. All 
were seeking gold. The only method of obtaining it that was 
feasible, under the existing circumstances, was that known as 
placer mining. The miners began to arrive in the summer of 
1849, and they found the streams very low, many of them dry. 
It was only where streams were flowing that they were able 
to obtain any satisfactory results from their operations. As 
their numbers increased from year to year, the demand for 



LUOIBN SHAW. 191 

ruiming water in the mining regions became very great. Bights 
to take water from the streams soon became very valuable. 
Naturally disputes arose concerning such rights. 

The conditions were novel to these people. There seemed to 
be no owner of the land. It belonged to the United States^ but 
the national government had not even surveyed it aad had no 
persons in actual control of it. It was all unoccupied. There 
was no known law to govern the rights of the persons desiring 
to extract the gold from the land and use the water for that 
purpose. There. was no government, no law and no authority. 
In these circumstances the early adventurers had to form their 
own government and frame and enforce their own laws in such 
rude fashion as the conditions permitted. 

Those who had come from the eastern part of the United States 
were in such numbers that they dominated the situation. Be- 
longing to the Anglo-Saxon race, being accustomed to conditions 
where law and order prevailed, and finding themselves in a 
r^on previously uninhabited and without any government, they 
followed their natural habits, inclinations and intuitions, and 
immediately sought to make local regulations for the preserva- 
tion of law and order and for the protection of such rights as 
were generally recognized, until a provisional government should 
be provided by the United States. Mining districts were formed 
and in each of them mining rules were adopted at meetings of 
the inhabitants of the territory included in the district. These 
rules were generally accepted as law and were enforced by such 
informal tribunals as the inhabitants instituted under the ex- 
igencies of each. particular occasion. The regulations were not 
precisely the same in all districts. Either the different topog- 
raphy or the different ideas of the inhabitants of the several 
districts caused somewhat different rules to be adopted and 
established in different places. Practically no attention what- 
ever was given to the subject of the real ownership of the land 
on which the miners settled. No person appeared to claim 
ownership. If the roving tribes of Indians found in the country 
had any sort of possession or claim, the miners gave it no 
thought, and they were wholly disregarded. The rights of the 
miners were those of the possessor, only, and such possession 

7 



192 LAW OF WATERS IN THE WEST. 

was the sole foundation and evidence of their title to the land 
they occupied, to the water they used in mining, and to the 
gold which they obtained thereby. 

The influx of population was very rapid. According to Mr. 
Hittell the persons arriving during the year 1849 numbered one 
hundred thousand. He justly adds that a large majority of 
them ''were Americans, trained in American schools, imbued 
with American principles and included some of the choicest 
spirits from every section of the United States.^'* It soon 
became evident that a local government of the territory should 
be organized. General Bennet Eiley had been appointed pro- 
visional governor by the President of the United States. In 
pursuance of a proclamation issued by him a convention to 
organize a state government met and prepared a constitution 
which was ratified by popular vote on November 13, 1849. The 
actual admission into the union did not take place until Septem- 
ber 9, 1850, but the new state government, without awaiting 
federal authority, immediately upon the adoption of the consti- 
tution, organized and took control of local governmental affairs. 
No territorial government was ever formed for California. The 
judicial department provided by the constitution included a 
supreme court consisting of a chief justice and two associate 
justices, all to be elected by the people for a term of six years. 
The legislature was empowered at its first meeting to elect the 
justices of the court and classify them so that one should go out 
of oflSce every two years. Under this authority justices were 
elected on December 22, 1849, and they organized as a court in 
March, 1850. 

Prior to the treaty with Mexico in 1848, property rights were 
governed by Mexican law. After that treaty and until Cali- 
fornia was admitted into the union, the law of Mexico continued 
in force with respect to private rights of property, except in so 
far as it was changed by the public authorities of this country.' 
The first volume of our reported cases contains many decisions 
applying the Mexican law to past transactions. On April 13, 
1850, the legislature enacted a law declaring that the common 

* 2 Hittell's Hist, of Cal., p. 700. 

'People vs. Folsom, 5 Cal. 379; Wells vs. Stout, 9 Cal. 494. 



LUOIBN SHAW^ 193 

law of England, so fax as it was in harmony with the state and 
federal constitutions, should be the rule of decision in this 
state. 

The Supreme Court was thereupon confronted with the prob- 
lem of determining the rights of contending parties to the use 
of the waters of the streams in a coimtry which had been 
previously subject to the almost imknown law of Mexico and 
which had suddenly been transformed into a country governed 
by the common law, where the real owner of the land was for all 
practical purposes absent and indifferent, where the people had 
come from different countries and were strange to the land, the 
climate and to each other, and where the principal source of liti- 
gation in regard to the use of water was the conflicting claims 
of miners to the waters they were diverting, or claiming the right 
to divert, from the streams adjacent to or near their mining 
claims. 

The common law of England included the doctrine of riparian 
rights; a doctrine naturally growing out of the well-known 
principles of that law as to the right of private property in 
land owned in fee simple. An entry on land without permission 
of such owner, whatever the motive or purpose, was a trespass at 
common law, and the owner had the right to prevent it by such 
force as was necessary to accomplish that purpose. Conse- 
quently, except with respect to navigable streams, the several 
owners of the lands bordering upon the streams were, under that 
law, the only persons who could have or enjoy the use of the 
water rimning therein, or claim any right thereto, for no other 
person could have access to the stream either to take or use the 
water. These rules automatically protected the abutting owners 
in the exclusive right to the use of the water, and they are the 
foundation of the riparian right. But in this strange country 
the owner of the land, apparently by design, remained absent 
and refrained from interfering with the possession of the land 
by the miners, or with the use of the waters thereof. The 
disputes were all raised by persons who had no real ownership 
in the water which they were using, and of which, by virtue 
of that use, they claimed to be in possession, and the real owner 
was not brought into the controversy. The problem of the 
court was therefore directed mainly to the best and most appro- 



194 LAW OP WATERS IN THE. WEST. 

priate application of the general principles of the common law to 
the anomalous conditions existing in the mining r^ons, con- 
ditions wholly unknown in the countries in which, up to that time, 
the common law had been administered. There were no specific 
common law rules that had ever been applied in those countries 
to the peculiar conditions and controversies existing and arising 
in the mining regions of California, and the only recourse was to 
its general principles relating to possessory rights. 

The right of a person who did own land on a stream, to 
divert water therefrom for use on non-riparian land, had re- 
ceived little attention and satisfactory authority upon that siib- 
ject was wanting. The laws of Mexico on the subject were not 
well known and its safeguards for the protection of private 
rights, being derived in the main from the arbitrary methods 
of the ancient Spanish rule, were not adapted to the habits and 
preconceived ideas of Anglo-Saxon races. The rights of pos- 
sessors of the land gave comparatively little trouble. In the 
first year the court held that the Mexican law and the com- 
mon law alike secured to one who was in peaceable possession of 
land a right thereto superior to that of any mere intruder or 
trespasser and that proof of such possession prior to and at the 
time of an intrusion thereon was sufficient to defeat or oust the 
intruder.' The question of water rights was naturally more 
complex. Three years passed before any disputes over water 
reached the Supreme Court. The first case on that subject, 
decided in 1853,* was a controversy between two appropriators 
for mining purposes. Neither claimed as a riparian owner. The 
court nevertheless looked to the common law authorities on 
riparian rights and found there the doctrine that the riparian 
owner had the right to the reasonable use of the water during its 
passage over his land, and no title to the corpus of the water, 
and that he could not reclaim the water after it had passed his 
boundaries. From these principles it concluded that where a 
miner diverted water from one stream and, after using it for 
mining purposes, turned it into another stream, he thereby lost 
all right to it and could not retake it from the second stream 

"Sunol VB, Hepburn, 1 Cal. 260; Woodworth vs. Fulton, 1 Cal. 308; 
Brown vs, O'Connor, 1 Cal. 421. 
* Eddy V9, Simpson, 3 Cal. 249. 



LtTOIBir dHAW. 19S 

agamst the will of another miner whose dam waa on the second 
stream below the place where the additional water waa turned 
into it. This decision was apparently baaed on the idea that 
the mert turning of the water into another stream, after having 
once used it, was conclusive evidence of abandonment^ and that 
it gave one who had prior rights to divert the natural waters 
of the latter stream a right to have that artificial increase 
continued for his benefit. Five years later this decision was 
virtually overruled and it was declared that the prior right to the 
use of the natural water of a stream did not entitle the person to 
the exclusive use of the channel, and that the bed of the stream 
could be used by others as a channel for conducting water 
provided that they took out below no more than the quantity 
they had added to the stream above, less the loss by evaporation 
and seepage/ This has ever since been the established law. 

The difficulties encountered by the court in its consideration 
of these questions are expressed in some of the opinions. Some 
of those expressions are interesting. In the second case on the 
subject, decided in January, 1855,* Justice Heydenfelt deliver- 
ing the opinion of the court, said: *'In this state the larger 
paxt of the territory consists of mineral lands, nearly the whole 
of which axe the property of the public,'* and with obvious refer- 
ence to the rules and customs of the miners he added : 

With the exception of certain state regulations, very limited in their 
character, a system has been permitted to grow up by the voluntary 
action and assent of the population, whose free and unrestrained occupa- 
tion of the mineral region has been tacitly assented to by the one gov- 
ernment and heartily encouraged by the. legislative policy of the other. 
If there are, as must be admitted, many things connected with this 
system, which are crude -and undigested, and subject to fluctuation and 
cuspute, there are still some which a universal sense of necessity and 
propriety have so firmly fixed as that they have come to be lookea upon 
as having the force and effect of res judicata. 

In a case decided two years later,* Chief Justice Murray said 

that the former decisions in regard to the right to appropriate 

water from streams for mining purposes *' have been based upon 

the wants of the community and the peculiar condition of things 

in this state (for which there is no precedent), rather than 

any absolute rule of law governing such cases. The absence of 

•Butte, etc. Co. vs, Vaughn, 11 Cal. 151; Hoffman vs. Stone, 7 Cal. 46. 

* Irwin vs. Phillips, 5 Cal. 146. 

* Hoffman vs. Stone, 7 Cal. 48. 



196 LAW OF WATBfiS IN THE WEST. 

legislation has devolyed on the courts the necessity of framing 
rules for the protection of this great interest^ and in determin- 
ing these questions, we have conformed^ as nearly as possible^ to 
the analogies of the common law/' Later in the same y^sx, in a 
case involving the respective rights of successive appropriators 
from the same stream^ and the pollution of the water by the 
upper appropriator^ Justice Burnett made a fuller statement 
on the subject as follows : 

It may be said, with truth, that the judiciaiy of this state, has had 
thrown upon it, responsibilities not incurred by the courts of any other 
state in the union. In addition to those perplexing cases that must 
arise, in the nature of things, and especially in putting into pifustical 
operation, a new constitution and a new cocie of statutes, we have had 
a large class of cases, unknown in the jurisprudence of our sister states. 
The mining interest of the state has grown up under the force of new 
and extraordinary circumstances and in the absence of any specific 
and certain legislation to guide us. Left without any direct precedent, 
as well as without specific legislation, we have been compeUed to apply 
to this anomalous state of things the analogies of the common law, and 
the more expanded principles of equitable justice. There being no 
known ^y8tem existing at the beginning, parties were left without anv 
certain guide, and for that reason, have placed themselves in such 
conflicting positions that it is impossible to render any decision that will 
not produce great injury, not only to the parties immediately con- 
nected with the suit, but to large bodies of men, who, though no 
formal parties to the record, must be deeply affected by the decision. 
No class of cases can arise more difficult of a just solution, or more 
distressing in practical result. And the present is one of the most difficult 
of that most perplexing class of cases. The business of gold-mining 
was not only new to our people; and the cases arising from it, new to 
our courts, and without judicial or legislative precedent, either in our 
own country or in that from which we nave borrowed our jurisprudence; 
but there are intrinsic difficulties in the subject itself, that it is almost 
impossible to settle satisfactorily, even by the application to them of 
the abstract principles of justice. Yet we are compelled to decide these 
cases, because they must be settled in some way, whether we can say 
after it is done, that we have given a just decision or not.* 

The decision was that the incidental pollution of the water by 
the upper appropriator in his mining operations, to the detri- 
ment of the lower, one was not an actionable injury. In the 
case next following it in that volume of the reports, the decision 
was overruled on this point, and Justice Burnett, in concurring 
therein, stated that the opinion in the first case ^' should receive 
some qualification/' * 

During the period preceding the year 1866 large diversions of 
water had been made from the streams of the mining regions in 

• Bear River Co. vs, York Mining Co., 8 Cal. 332. 
' Hill V8, King, 8 Cal. 338. 



LUCIBN SHAW. 197 

this state, canals many miles in length had been constructed to 
carry the water to the place of use or to sell it to the miners 
along its course^ great sums of money had been invested and 
property had been acquired which was of great value, if the pos- 
sessors had a. valid title thereto. This was done in reliance upon 
the general understanding of all concerned that the United 
States, as the owner of the land, acquiesced in these uses of its 
property and would not interfere to take it away from those 
who had thus occupied, developed and improved it, or deprive 
them of the products of their efforts. As a result of the labors 
of the courts under the difficult conditions just referred to a 
system of law had been established and waa being administered, 
whereby the rights of appropriators of water from the streams 
on the public land, as between claimants not in privity with the 
riparian owner, were considered and determined in a reasonably 
satisfactory manner. 

The principles so established during this period may be stated 
generally as follows : The waters of these streams on the public 
lands of the United States were all subject to appropriation at 
any time by any person who proposed to devote the water so 
taken to a beneficial use. The miJdng of a diversion with such 
intent and for such purpose would vest in the diverter, at 
once, the right to use the water. No length of time of such use 
was essential to the acquisition of the right. The water was 
treated as property having no owner. The rights of the United 
States as riparian owner of the abutting lands were completely 
ignored. With respect to contending appropriators of\water 
from the same stream, he who was first in time was considered 
superior in right. Such right vested by relation aa of the time 
when the appropriator began the actual work of constructing his 
diversion works and ditch for that purpose, provided the work 
was done in such a manner as to be visible and to manifest to 
others his intent and purpose to prosecute the work to com- 
pletion," and provided further, that he did so and actually took 
and used the water. The right so obtained was a right to only 
so much of the water as was beneficially used. The owner of 
such right was entitled at any time to change the place of 

"Kelly vs. Natoma W. Co., 6 Cal. 105; Kimball vs, Gearhart, 12 
Cal. 27. 



IBS LAW OF WATERS IN THE WEST. 

diversion or the place of use, if the rights of others were not 
impaired thereby. These principles have not been changed by 
subsequent decisions. 

The existence of riparian rights was recognized by the court 
in a few cases where a reference thereto seemed appropriate, or 
where the law on that subject illustrated the particular case; 
but no case had arisen in which that law was considered as ina- 
portant to the decision." 

The titles to all this valuable property were not settled by 
the decisions of the state court. No statute of limitations would 
run against the United States, nor could title by prescription be 
acquired against it by any period of adverse possession. The 
large interests in property of this character would have been in 
great jeopardy, if the federal government had chosen a policy 
of hostility to the taking of gold from its lands such as has 
since been manifested with respect to the taking of coal and oil. 
Fortunately for the miners, and for the development and pro- 
gress of the State of California, a diflerent policy was adopted. 
On July 26, 1866, Congress enacted a law recognizing the 
possession of the miners as lawful, virtually acquiescing in the 
previous extraction of gold from the lands of the United States, 
and, so far as thes6 lands and the United States were concerned, 
sanctioning and declaring lawful the claims to water rights then 
acquired or thereafter to be acquired in the streams on the 
public lands, provided such claims were of a character which 
had been ^'recognized and acknowledged by the local customs, 
laws, and the decisions of the courts.^^ " By the supplementary 
act of July 9, 1870, it was provided that all homestead and 
preemption claims, and all patents granted for public land^ 
should be subject to rights then or thereafter acquired as speci- 
fied in the act of 1866." 

By these acts all conflict between the claimants of water 
under appropriation from streams on the public land and the 
United States as owner of the land bordering on the streams, 
was eliminated and terminated, and the danger of interference 
with such rights by the federal government was removed. 

"Crandall v«. Woods, 8 Cal. 141; Leigh vs. Independent D. Co., 8 
Cal. 323. 
" 16 U. S. Stats. 218, Sec. 17. 
" 16 U. S. Stats. 218, Sec. 17. 



LUCIEN SHAW. 199 

These acts mark the termination of the first stage of the 
development of water law in California. The law as then estab- 
lished related almost entirely to the use of water taken from 
streams on the public domain for mining purposes. The use of 
water for irrigation was of little importance in the mining 
regions. The value of the alluyial soils in the large and com- 
paratively level valleys of the state for agricultural purposes 
was then just beginning to be realized. They had been gener- 
ally supposed to be valuable only for grazing and a little later 
only for grain farming. In a few places vineyards had been 
planted to grow grapes for making wine, and in southern 
California irrigation had been practiced to a limited extent for 
growing fruit. There had been enough water for the small needs 
of this character, and the relative rights thereto of the riparian 
owner and the appropriator for use on other lands had not as 
yet become important. 

About .this time a class of immigrants began to arrive who in- 
tended to engage in agriculture. In a few years the value of 
water for irrigation, and the necessity of irrigation for the 
production of anything except grain became manifest, especially 
in the San Joaquin Valley, and in southern California, Henry 
Miller and his partner Lux, known as Miller & Lux, had 
acquired large bodies of land in Kern County in the San Joaquin 
Valley. James B. Haggin and Lloyd Tevis had also acquired a 
large area of land in that county. Haggin and Tevis began to 
construct canals for taking out the water of Kern River to 
irrigate lands not riparian thereto. The lands of Miller & Lux 
were lower down and bordered on the stream or on sloughs 
diverging from it, and the diversions of Haggin and Tevis 
diminished the flow of the water of the stream to the Miller & 
Lux lands, on which they had begun to use it to irrigate their 
lands for alfalfa and other crops. Along Elings River, the next 
important stream emerging from the mountains north of the 
Kern, large canals were made and water diverted therein to 
non-riparian lands for irrigation, and colonies of fruit farmers 
had been established along the canals. The course of the 
decisions above mentioned in regard to the rights of appro- 
priators, and the long continued practice in the mining regions 
of diverting water from the streams without asking leave from 



200 LAW OP WATERS IN THE WEST. 

the riparian owner, had accustomed the people to the notion that 
riparian rights were not important, and the idea had become 
prevalent that they were not suited to our conditions and had 
therefore ceased to exist. The Civil Code, enacted in 1872, in a 
chapter on that subject, had codified some of the rules of law 
previously established, regulating the right to appropriate the 
water of running streams.^ The last section of the chapter 
recognized the existence of riparian rights by the declaration that 
''the rights of riparian proprietors are not affected by the 
provisions of this title.'' Litigation between the riparian owners 
and the appropriators had begun in the coimties of Tulare and 
Fresno, over the waters of Kings River, and in the county of 
Kern between Haggin and Tevis and others, claiming as ap- 
propriators, and Miller & Lux, with others, claiming as riparian 
owners. The action between the last mentioned parties was 
begun in the year 1879," and the other actions soon afterward. 
The importance of the question, the very large interests in- 
volved, and the growing demand for water, soon caused the 
controversy to develop into a political contest. The great wealth 
of the parties to the action in Kern County had tiie effect of 
centering the political discussion upon that case. The discovery 
that Section 1422 of the Civil Code apparently purported to 
preserve the existing but almost forgotten riparian rights, direc- 
ted the main political attack to the repeal of that section. 
Shortly before the beginning of the political campaign of 1884, 
the case of Lux V8, Haggin in Kern County was decided by the 
Superior Court of that county in favor of the appropriators, 
Haggin and Tevis. Both of the contending parties doubtless 
believed that the political aspect of the case was important, 
and others throughout the state, especially in other parts of the 
San Joaquin Valley and in southern California, were soon 
advised of it. The litigants perhaps hoped that the political 
agitation might influence the decision of the Supreme Court, 
where the case was then pending on appeal. Public- sentiment, 
so far as it found expression in 1884, was entirely in favor 
of the appropriators. Conventions were held and resolutions 
adopted condemning the doctrine of riparian rights and Section 

»* Part IV, Title VHI, Sees. 1410-1422. 

"* Title Ins. Co. vs. Miller & Lux, 183 Cal. 74. 



LUOIBN SHAW. 201 

1422. The discuesionB in general indicated that^ in the usual 
superficial method of reaching conclusions, the people believed 
that the sole foundation of the riparian right was the enact- 
ment of that section. An urgent demand was made to elect 
members of the legislature pledged to repeal it. The more 
absorbing interest of the people in the Presidential election of 
that year probably frustrated that effort. At all events, the 
legislators then elected, although pressed to act in the matter, 
failed to do so and Section 1422 remained on the statute books. 
The decision of the Supreme Court in the case of Lux vs. 
Haggin was rendered on April 26, 1886.^ There had been 
several previous decisions in which the existence of riparian 
rights had been declared and in which such rights had been 
enforced/^ but there had been no serious dispute on the subject, 
the cases had not attracted public attention, and it was not 
believed that the court would adhere to the previous rulings 
on the principle of stare decisis, especially in view of the general 
discussion of the subject in 1884. Probably no case ever came 
before the Supreme Court of California that was more fully 
argued or in which counsel of greater ability were engaged on 
the respective sides. The opinion was exceedingly exhaustive, 
covering 176 pages of the printed report. It is the longest 
opinion to be found in the decisions of our Supreme Court, and 
it elaborately treated every phase of the subject. It declared 
that the rights of the riparian owners to the use of the waters 
of the abutting stream were paramoimt to the rights of any other 
persons thereto; that such rights were parcel of the land and 
that any diminution of the stream against the will of the 
riparian owner by other persons was an actionable injury. The 
question was settled by that case and the riparian rights has 
never since been disputed. 

If the doctrine of the riparian right had been strictly enforced 
in all cases by the abutting land owners, it is obvious that it 
would have prevented all use of the waters of streams passing 
through lands in private ownership, or any non-riparian land. 

The rightful use of such waters on non-riparian land would have 

f 

"69 Cal. 263 to 439. 

'^Creiditon vs. Evans, 53 Cal. 55; Osgood vs. El Dorado W. Mining 
Co., 56 Cal. 574; Zimmler vs. San Luis W. Co., 57 Cal. 221; St. Helena 
W. Co. vs. Forbes, 62 Cal. 182. 



202 LAW OP WATERS IN THB WEST, 

been impossible^ for such land owners could not lawfully take 
out the water without infringing upon the right of every ripa^ 
rian owner along the stream to have the water flow as it was 
accustomed to flow. The opponents of the doctrine of riparian 
rights had pointed out these results with much emphasis and 
repetition in the political campaigns prior to the decision in 
Lux vs. Haggin, and they are still referred to as evidence that 
the doctrine is contrary to a sound public policy in states having 
the arid climate of Galifomia. The obvious answer on the ques- 
tion of policy is that the objection cox^es too late^ that it should 
have been made to the legislature in 1850, prior to the enactment 
of the statute adopting the common law. When that was done, 
the riparian rights became vested^ and thereupon the much more 
important public policy of protecting the right of private 
property, because paramount and controlling. This policy is 
declared in our constitutions, has been adhered to throughout 
our national history, and it is through it that the remarkable 
progress and development of the country has been made possible. 
Notwithstanding the existence of these vested rights, there 
has been a very general use of water on non-riparian land. 
This has been made possible by several causes. The most 
important and effective cause of a legal nature is the common 
law rule, now expressed in Section 1007 of the Civil Code, tfa^ 
a title by prescription, good against all owners of private 
property, may be acquired by adverse occupancy for the period 
of limitation which in this state has been flve years. -Other 
causes arise from natural conditions. Any person who does not 
own land on a stream may obtain access to the water thereof by 
purchasing the right to do so from the owner of any parcel of 
riparjan land. Usually the banks of the larger streams are so 
high that the owner of a small tract cannot bring the water upon 
his land, except by a diversion on land above him, to whidi of 
course he must have the consent of the owner thereof. Such 
owners frequently made little use of the water for irrigation and 
were indifferent to Iheir riparian rights therein. Hence they 
usually made no objection to a diversion therefrom until five 
years had elapsed. The large diversions, almost without excep- 
tion^ have been made near the point of emergence of the streams 
from the mountains, where land had little value for any purpose. 



L0OIBK SHAW. 203 

and where the diversion would have little effect on the land near 
by and were so far from the land seriously affected thereby that 
they provoked no immediate opposition. In these ways and for 
these reasons, innumerable prescriptive rights to the use of the 
water of streams have been acquired from the riparian owners of 
private land, either without objection, or by successful litiga- 
tion. As a net result the irrigated land in the state is almost all 
non-riparian> and the existence of the riparian right has not 
prevented the beneficial use of the greater part of the waters 
of the streams. 

The dedsicms of water suits for many years following the case 
of Lux V8. Haggin have dealt, for the most part, with the law 
of adverse possession, the interpretation and application of the 
aforesaid chapter of the Civil C!ode, the application of the 
principles of these laws to the particular facts presented in each 
case, and to definitions of the distinctions between the rights of 
riparian owners and the rights of persons claiming only by ap- 
propriation and use. Many rules of more or less importance on 
these subjects have been established, but they do not essentially 
differ from the generally prevailing law on the subject and a 
discussion of them is unnecessary. 

I now come to the third branch of my subject ; the law relating 
to underground waters. 

This question first became important in southern California, 
by which I mean the region south of the Tehachipi range of 
mountains. The influx of population and the demand for 
water for irrigation of orchards in that part of the state began 
to exhaust the supply from the surface streams more than 
thirty years ago and large areas of fertile land still remained 
barren for want of water. That country, and in fact all of Cali- 
fornia, is interspersed with places which the Spanish call cien- 
egas, where in the rainy season of ordinary years, and all the 
year round in some of them during years of heavy rainfall, the 
surface of the ground has the appearance of a swamp. These are 
in reality ancient lakes which in the course of ages have been 
filled with the sand, soil, gravel and boulders that have been 
carried into them by the mountain torrents, or perhaps in some 
cases by glacial action. The loose material of which they are 
composed is usually of great depth and is saturated with water. 



304 LAW OF WATERS IN THE WEST. 

They are natural reservoirs of water. 'The surface streams flow 
oyer deep beds of similar material, permeated with water from 
the bottom to the level of the surface of the stream, and this 
body of underground water, in such cases^ supports the stream 
and is necessary to its existence. From these sources it was 
possible to obtain a large addition to the supply of water. When 
the average amount pumped out of the ground does not exceed 
the amount added to it by the average annual rainfall, such 
supply is steady and reliable. If it is taken from one of the 
underground reservoirs from which no surface stream issued 
there is no limit to the amount that could be pumped, except 
that it must not exceed the average supply from rainfall. But 
if it were taken from the undergroimd water supporting a 
stream, it would inevitably diminish the flow of the stream, to 
the detriment of those entitled to its use. 

The shortage of water and the increasing demand soon induced 
the use of piunps to obtain from these sources an additional 
supply. At first this was done in a small way with pumps driven 
by windmills. The perfection of the gasoline engine and later 
the development of electric power, made it possible to obtain a 
large supply with sufficient economy of operation to make it 
practicable. 

The subterranean strata in which these waters lie are com- 
posed chiefly of sand and gravel in which the water moves 
freely from place to place when impelled by the force of gravity. 
Consequently, if water is pumped from a well in such a stratum, 
a flow from the adjacent parts would set in at once to fill the 
voids thus created. Pumping from one well would sometimes 
materially lower the water level in another well a mile distant. 
In some places the water in these underground strata came from 
higher levels in a layer of sand and gravel overlaid by a striatum 
of impervious material, thus creating a pressure which forced the 
water to the surface when the dense covering layer was pierced 
by a well, and by that means artesian wells would be produced. 
The flow from these wells would cease if too many wells were 
opened to the same source. 

It is not difficult to perceive that these conditions would 
naturally cause conflicts of interest in this water supply and 
thus engender litigation. The first case of importance that 



LUOIBN SHAW. 205 

arose concerned the preserration of the flow of water in the 
Los Angeles Biver^ which then constituted the sole source of 
supply of the City of Los Angeles for the uses of its inhabitants. 
A private company proposed to construct tunnels and filtration 
galleries in what is practically the bed of that river, the effect 
of which would be that, without directly touching the surface 
stream or tunnelling immediately under it, the water composing 
the stream would seep through the sand and gravel into the 
tunnels and the stream would in that manner be wholly diverted 
into the tunnels. The process was enjoined by the Superior 
Court. The matter was settled and that case did not reach the 
Supreme Court. The same question, however, came up in a 
later case between the dty and other parties and the Supreme 
Court decided that, under the grant to the ancient pueblo of 
Los Angeles to which the present city had succeeded," the 
right of the city to the water of the river was paramount to that 
of the owners of the riparian land along its course, and that 
the owner of such land could not lawfully diminish the flow of 
the stream by means of excavations in the land adjacent thereto, 
although the water was not taken directly from the stream, but 
seeped through the loose formation of sand and gravel into the 
excavations." This rule has been followed ever since in all 
cases where persons having rights in a natural stream were 
threatened with injury by the extraction of the percolating 
water which sustained and supported the stream in its flow." 

The rights to underground waters in the land of different 
owners situated over an ancient lake or basin also became a 
source of controversy because the pumping of large quantities 
of water from one well lowered the water level in other wells in 
the same basin. The subject first came before the court in the 
year 1902. The question had been growing in importance for 
several years before that date. When the decision was first 
rendered in November, 1902, it attracted the attention of many 
other interested parties. A rehearing was granted for the pur- 
pose of allowing further discussion by others having larger in- 
terests at stake. Many additional briefs were filed and the 

*■ Vemon Lt. Co. V8. Lob Angeles, 106 Cal. 237. 
^Lo6 Angeles vs, Pomeroy, 124 Cal. 621. 

" McClintock V8. Hudson, 141 Cal. 621 ; Verdugo vs. Verdugo, 152 Cal. 
663; Huffner vs, Sawday, 153 Cal. 93. 



206 LAW OP WATBR8 IN THB WEST. 

final dedBion was not made until November^ 1903. The preyiotiB 
opinion was adhered to and approved and a supplemental opinion 
was rendered giving additional reasons for the conclusion 
reached." 

As the doctrine of the case is now regarded as settled, a 
statement of it may be of interest. The rights of the owners 
of different parcels of land situated over a water supply of that 
character^ with respect to each other, and with respect to the use 
of the water on the overlying land, are mutual and reciprocal. 
They are regarded as persons having different interests in a 
common estate in such waters. Each is entitled only to a 
reasonable use of such water on such land and may take no 
more than his reasonable share for that purpose. None of 
them can rightfully take the water and export it from the 
basin for use on lands not situated over the common water 
bearing stratum, if such taking injures the owners of other 
parcels of the overlying lands. In short, the lawful rights of the 
several owners of such lands in the waters therein are in almost 
all particulars similar to the mutual and reciprocal rights of the 
owners of riparian land along the course of an ordinary stream 
in the use of its waters. This conclusion was considered neces- 
sary to the full development and use of the natural resources of 
the state and to the prosperity and general welfare of its people. 
The geological formation of the land, its topographical char- 
acteristics, and the aridity of the climate produced conditions so 
different from those of the countries from which our common law 
rules were derived, that the well-known rule that the ownership 
of the soil in fee gave absolute title to all beneath the surface, 
including such subterranean water supplies," was held unsuitable 
to our conditions. In this the court followed the fundamental 
principles on which the common law is founded, rather than 
the rules for technical application to special subjects adopted 
for practical use in the different conditions prevailing in the 
countries from which we derive that law. It gave emphasis to 
the ancient maxim of the Civil Law, embodied in our Civil Code, 
and which is also a part of the common law, that *^when the 

*^ Katz V8. Walkinshaw, 141 Cal. 116. 

"Hanson vs. Mocue, 42 Cal. 309; Cross va. Kitte, 69 Cal. 222; S. P. 
R. R. Co., vs. Dufour, 95 Cal. 617; Gould vs. Eaton, 111 Cal. 644. 



LUOIBN SHAW. 207 

reason of a rule ceases^ so should the rule itself/' ^ It is a good 
example of the elasticity of the common law^ showing its adap- 
tation to the varying conditions of human life in countries other 
than that of its origin. 

This comprises in part the history of the water law in this 
state down to the present time. The demand for additional 
water and for the economic&l application of the water already in 
use continues without abatement and with constantly increas- 
ing urgency, because of tixe continuing influz of population and 
the large area of land capable of vastly increased production, 
when water is applied by artificial means. The next process in 
the development of the use of water, the storing of water in 
elevated reservoirs in the mountains, I have already mentioned. 
I do not believe that the law applicable to this process will 
present much difficulty. The legal aspect of these developments 
should present no very novel problems. The physical aspect 
presents alluring prospects of increasing prosperity and a fertile 
field for theoretical speculation, the discussion of which would 
be out of place here. 

"Section 3510. 



THE KANSAS INDUSTRIAL COURT. 

BY 

F. DUMONT SMITH, 

OF XAN8A8* 

This Kansaa idea of an Industrial Court seems a little startling 
to lawyers at firsts and especially those who have not followed 
closely the great and constantly accelerating development of the 
police power in the last 50 years. 

Of course^ there has always been a police power. The first 
police power was in the despotic control of the father, the head of 
any family. But that branch of the police power, I regret to say, 
is today practically obsolete. And the record of civilized man on 
down through the ages is a chronicle of the constant giving up, 
the yielding of individual right to the public good; in other words, 
what we call the police power. 

When the periphery of my private right impinges upon the 
periphery of your private right, both become stationary. In 
fact, the law of private rights crystallized into practically its 
present form, before the time that Blackstone wrote his com- 
mentaries in 1768. But, when the periphery of my private right 
impinges upon the periphery of the public right, my private right 
not only ceases to expand, but it contracts. And that is one 
of the most startling of all of the sociological facts of the last 50 
years — no matter whether we condemn or approve, the fact exists. 

This Industrial Court is tied up with and depends upon the 
police power. And before discussing the court, I want to give 
you gentlemen a parable, something you probably have not heard 
of in a long, long time, if you ever did. I hope you will pardon 
the implication that that remark seems to convey, but the fact is 
that the lawyers with whom I am acquainted show very slight 
traces of early religious training. The parable is this : Bill and 
Joe own adjoining farms. And as frequently happens, there is 
a dispute over the line fence. And nothing furnishes perhaps a 
more acrimonious dispute than a line fence, unless it is a row in 
« church. So one day Bill and Joe meet at the fence. Bill has a 
shotgun and Joe a club. And when it is over Joe is dead and his 

(208) 



F. DUMONT SMITH. 209 

wife a widow and his children orphans. Bill is sent to peniten- 
tiary, and his wife is^ in effect, a widow, and his children orphans. 
And after it is all over, after all the bloodshed and sorrow, the 
dispute about the line fence remains exactly where it was before. 
All the violence has thrown no light upon that dispute. 

Let us apply that parable. Bill owns' a factory, or rather, 
because he is a capitalist, we ought to call him ^^ William,^^ and 
Joe works for him — a great many Joes. The Joes complain that 
they are not getting w&ges enough. William says, ^^ I can't pay 
you any more. I am not making any money." The Joes think 
that William is perhaps lying. He does sometimes. And so they 
strike. William closes his factory. Bye and bye he concludes to 
open it, he puts a barbed wire fence around it, he imports ^rike 
breakers, he hires professional gunmen as guards. Meanwhile, 
poverty and hunger and cold invade the little homes of the Joes. 
And they get excited, touch off a stick or two of dynamite. Strike- 
breakers are killed or maimed. Some of the Joes are killed. 
Property having no relation whatever to the strike is destroyed. 
The traffic and business of great communities is interrupted or 
paralyzed. After a while, the militia are called out. And finally, 
when both sides are exhausted, they have an arbitration. 

Now, this is the vice of all arbitration, and there is a vast 
amount of ignorance about this Industrial Court because people 
confuse it with an arbitration. The vice of an arbitration is 
that both parties to the controversy are admitted to the arbitral 
body. The truth and justice of the controversy is not sought. 
The result always is a diplomatic peace, a peace imposed by the 
stronger upon the weaker. If the union is strong and the em- 
ployer weak, the union wins. If the employer is strong and the 
union weak, the employer wins. But no attempt is made to find 
out where the line fence belongs — whether Joe was getting a 
fair wage, is giving an honest day's work for it; whether William 
was profiteering. And the result is simply an armed truce. 

No controversy is ever settled until it is settled in the light of 
justice. Justice is the universal solvent. If we could implant 
in every human heart the instinct of justice, there would be no 
controversy between man and man. It would even settle a lot 
of the divorce cases. 



210 THE KANSAS INDUSTRIAL OOUKT. 

'New, we have attempted in Kansas to apply^ juridical and 
judicial processes to these controversies. Mr. Gompers says that 
this industrial warfare, this civil warfare, is the only way to settle 
these controversies. We in Kansas are trying an experiment, and 
later I shall try to tell you how that experiment is working out. 

Coming now to this question of the police power. Edmund 
Burke, in one of his sublime orations, declared that the whole 
state and power of England, its kings, its lords, its commons, its 
army and its navy, were ordained, instituted^and maintained for 
the sole purpose of getting 12 honest men into a jury box. In 
other words, for a government by law, and not by arbitrary power. 
But Burke's definition was too narrow. The truth is that govern- 
ments are ordained and maintained solely for the exercise of this 
police power, of which the administration of justice is but a part. 
Because the police power has to do with the general welfare of 
the people, it is the crown and flower of all civilized government. 

The police power meets you at the tbreshhold of life, where 
it prescribes the qualifications of the doctor and nurse who bring 
you into the world. It follows you to the grave, where it regulates 
the cemetery in which your ashes are finally inumed. During all 
that interval, in every moment of that time, from the first puny 
wail of the newborn child, to the death rattle of the dying, that 
police power is about you, surrounding you with its invisible pro- 
tecting influence ; alone or in company, waking or sleeping, in the 
crowded street or on the lonely prairie, that police power is there. 
It educates your children and protects your family. It not only 
protects your life and property, but it protects our peace, your 
health, and even your comfort. 

The police power is the only power that can take and destroy 
private property for a public use, as when it destroys an unsafe 
or an unsanitary building. It is the only power that can invali- 
date a contract, which the Constitution says shall be kept sacred. 
It is the only power that can override a treaty between this and 
a foreign country, which the Constitution says shall be the 
supreme law of the land. Nothing is too large for its grasp; 
nothing too small for its notice. It stops the great liner at the 
threshhold of the country, to examine every passenger, and it pro- 
hibits undue slaughter of the migratory birds in their seasonal 
flight. It is the most flexible of all powers. The same power that 



F. DUMONT SMITH. 211 

regulates the stage coach was found suflBcient to regulate the 
steamboat^ the locomotive, the automobile, and today it is reach- 
ing its long arm into the ether to regulate the air lanes and the 
aviator. 

But its two great and most important functions are the pre- 
servation of the public peace and the protection of the public 
health. And upon these two foundations, chiefly, the Industrial 
Court Law is built. In the first place, the law declares that food, 
fuel, and clothing are the essentials of human life. That is not 
a legislative fiat — ^it merely recognizes a truth in nature. In the 
case of Jones vs. City of Portland, the Supreme Court of the 
United States took judicial knowledge of the fact that fuel was 
a necessary of life in Maine, and that for that reason the City of 
Portland might engage in the fuel business, the same as it might 
engage in furnishing water to its citizens. ^Shelter is not so 
essential. A man can live, love, and be happy in a tent, a dugout, 
or a cave. But these three thiiigs he must have. 

Now, the state is not concerned with whether a man have one 
suit of clothes or a dozen, whether he have three meals a day or 
five, whether he have fuel to heat a 20-room mansion or a 2-room 
cottage. But the state is concerned, and deeply concerned, that 
every citizen shall have so much food, fuel, and clothing as shall 
preserve his health and the health of his family. So the law 
says that whenever there is a strike in these essential industries, 
.such a shortage of these essentials as will affect the public health, 
then the court shall begin to function. It proceeds to the spot. It 
has inquisitorial power. It subpcenaes witnesses. It finds out 
what is the cause of the strike. It finds out whether a fair wage 
is being paid, and an honest day's work being given, whether 
there is any profiteering — in short, it determines where that line 
fence belongs. And if these were its only powers, the court would 
be worth while. Because no strike has ever succeeded that did 
not have public sympathy with it. Publicity, like the sunlight is 
a great germicide. No sociological wrong can exist when pub- 
licity is brought to bear upon it. 

But of course, under this branch of the law, a strike in a 
toothpick factory or a match factory, neither of those being an 
essential industry, would not call forth the exercise of the court'^s 
powers. Here again is a misunderstanding. People wonder why 



212 THE KANSAS INDU8TKIAL COURT. 

the court does not interfere with every strike. The court can only 
interfere in a strike that threatens two things^ either the public 
peace or the public health, and not until that threat is imminent 
But every strike of any considerable magnitude threatens the 
public peace. And there again, when that threat comes, the court 
interferes. Let me give an illustration. You remember there was 
a packinghouse strike last winter. There were 3000 packing- 
house employees in Kansas City, Kansas, who struck. Immedi- 
ately the Industrial Court went over there and offered to mediate. 
Both sides refused. They wanted to fight it out. The court said 
to the packers, ^' If there is a shortage of meat that threatens 
health in Kansas, the state will take charge of your plant.'' It 
aaid to the strikers, "If there is a single overt of violence, 
the troops will be put in here.'' As the result, that strike came to 
a losing close without one act of violence, or even a window broken 
in Kansas City, Kansas, while in every other packinghouse center, 
men were beaten to death, maimed, half killed, and property 
destroyed. 

Nowhere, I think, has this accelerating growth of the police 
power and its acceptance by the courts been more clearly shown 
than in the changing views of the Supreme Court of the United 
States. For the Supreme Court of the United States does some- 
times change its mind. 

Beginning with the case of Munn vs. Illinois, with which you 
are all familiar, where was exhibited a tendency to get away f ron\ 
past holdings that seemed to be thoroughly settled and crystal- 
lized in American law, that is, that the right of the public to 
regulate an industry was correlative with the right to demand 
a service, such, for instance, as a street railway or a steam rail- 
way, or a waterworks, or anything of that sort ; and that, where 
the public could not demand the service, it could not regulate it. 
It is true, undoubtedly out of deference to that general opinion, 
the Illinois law declared these elevators public elevators. But in 
the discussion, it was quite clearly shown that that was not 
absolutely essential to the opinion, and that case was affirmed 
in Budd vs. New York, I think in 1892, where Justice Brewer 
wrote a very powerful dissenting opinion, and, as the justices of 
the Supreme Court frequently do in their dissents, told the world 
that if that opinion stood, the Constitution was destroyed and the 
country ruined. 



F. DUMONT SMITH. 213 

Mnally^ in 1915^ in tide case of the German Alliance Insurance 
Company vs. The State of Kansas^ the court departed absolutely 
from the old rule. It will be conceded that the fire insurance 
business is purely a matter of private cpntract. An insurer can 
give or withhold a policy, he can even cancel it after it is given. 
But the court in that case held that the fire insurance business 
was so vast in this country, that the whole fabric of private credit 
was so tied up with it, that it was so impressed with the public 
interest, that the state might regulate it. 

That was an outpost case, far advanced, and it has never been 
withdrawn. There, for the first time, was established the prin- 
ciple that a purely private business might be so impressed with 
the public interest that the state could regulate it. 

I come now to that very startling decision, Wilson vs. New, 
which upheld the Adamson Act, a decision that I think sent cold 
chills down the backbones of most of us, because we thought we 
would have to learn our constitutional law all over again. In 
that case, as you recall, the Supreme Court took judicial knowl- 
edge — ^mark this, took judicial knowledge— of the fact that a 
strike was impending upon all the railroads of the United States, 
that this strike would stop the distribution of the necessaries 
of life, and that that would impair the public health, and that 
for that reason. Congress, acting under that implied police power, 
which it receives along with the direct grant of authority over 
interstate commerse, had a right to satisfy these impending 
strikers, by reducing the day from nine to eight hours, which, in 
effect, regulated wages, because it accelerated the time when over- 
time would begin. And Mr. Justice McBeynolds, in a somewhat 
ironical dissenting opinion, called their attention to the fact that, 
if Congress could say to the employer that eight hours constituted 
a day's work for which the employee might demand a day's wage, 
that it might also say to the employee that he could not demand 
a day's wage until he had worked eight hours. And that probably 
is true. But this decision was based upon the proposition that 
the distribution of these necessaries of life would fail, and would 
threaten the public health. Distribution is secondary — produc- 
tion comes before distribution. All the railroads in the United 
States cannot furnish one bottle of milk to a hxingry baby until 
the cow functions. All the railroads in the United States cannot 



214 THE KANSAS INDUSTRIAL COURT. 

furnish a loaf of bread until the farmer, the miller, and the baker 
have cooperated. How absurd, then, to say that the state, in the 
interests of public health, might regulate distribution, which is 
secondary, but may not regulate production, which is primary. 

We hear a great deal said about chattel slavery imposed by this 
law. This law does not compel any workman to remain at work 
an hour, if he does not want to. But if it did, it might be con- 
stitutional. We have a law in Kansas, and there is a similar law 
in several other states, and it has been upheld by the court, which 
compels a locomotive engineer, when he has started on his run, 
to remain with his engine until he reaches the next division point. 
The continuity of travel and distribution, the safety of the public, 
demand it. Chattel slavery, absolutely — for the time being that 
engineer is chained to the throttle, exactly like the galley slave to 
his oar. But, mark you, no one went out and conscripted Casey 
Jones and compelled him first to we a wiper, then a fireman, and 
then an engineer, and no one compelled Casey Jones to be an 
engineer one moment after he left his engine at the division point. 
But when he assumes that position, he assumes that continuity 
of employment as part of the burden of his employment, just as 
he assumes the risk of wrecks and accidents, just as a miner 
assumes the penalty of going underground to earn his daily wages. 

When once we get that principle, we will understand, I think, 
that this law is constitutional; when we establish tiiat these 
industries are essential to human life and to human health, 
whoever enters those industries in effect enlists exactly as does 
the soldier or the policeman in the preservation of the public 
peace. He is bound, not to continue to work individually — ^he 
may retire from that employment at any moment. But he can^t 
conspire, he can't stir up a mutiny that shall destroy the army 
of the public weal. 

Mr. Gompers has had a great deal to say about the God-given 
right to strike. With all due respect to the religious opinions of 
any, I know of no such rights that are enforceable in court. The 
tablets that were handed down amid the thunders of Siani are 
not self-executing today. They require a man-made mandate for 
their enforcement. When the Thirteen Colonies declared their 
independence and erected themselves into sovereign states, their 
legislative assemblies, each of them inherited, as a matter of 



F. DUMONT SMITH. 215 

course^ the pow^r of the British Parliament^ a power OBoiiipotent, 
without check or restraint, until or whenever tixe people chose to 
place a check by means of a constitution. It is of course axiomatic 
the the federal Constitution is a grant and that state constitutions 
are a restriction. We look to one to see what is given ; to the other, 
to see what is denied. And we shall look in vain in any state 
constitution for any denial of the right of the legislature to pro- 
hibit strikes, if it sees fit. The courts have, in a tacit way, assumed 
that strikes are legal, although some of the earlier English 
decisions denounced and suppressed them as conspiracies. 

So these gentlemen appeal to the protection of the Fourteenth 
Amendment. They say, first, that it is a denial of due process 
of law. As I understand that much abused phrase, it simply 
means this : It does not necessarily imply that the case has been 
tried in a court of law or equity, it may have been heard before 
a drainage board or a tax commission; but if the litigant has 
had his day in court, and process for his witnesses, in effect, if 
there has been trial before judgment and judgment before con- 
viction, then he has had due process of law. They say, too, they 
are denied the equal protection of the law. The equal protection 
of the law does not deny to the legislature the right of classifica- 
tion, and if the classification is reasonable, it may impose burdens 
and restrictions upon a particular class, which burdens or restric- 
tions are not imposed upon the rest of the citizens of the state. 
The only query is. Is the classification reasonable? And the 
proponents of the law are not compelled to prove that it is reason- 
able — ^the opponents must prove that it is unreasonable. 

In this case we submit that the classification is not only reason- 
able, but is inevitable. It is the only classification. 

Now, there is a curious periodicity in the recurrence of these 
great politico-legal questions in the Supreme Court of the United 
States, with its dual aspect, partly legal, partly political; ques- 
tions that have stirred this country from end to end, questions 
that have made and unmade political parties, questions that have 
even sown the dragon's teeth of civil war. And. they recur just 
about once in the life of a biblical generation, every 25 years. 
Beginning in 1804 with Burr vs. Madison, which established the 
supremacy of the judiciary against the unconstitutional aggres- 
sions of the other branches, 25 years later came those decisions 



216 THE KANSAS INDUSTRIAL OOURT. 

under th^general welfare clause^ deciding that the federal govern- 
ment might engage in works of internal improvement within the 
states^ a proposition bitterly fought by a great political party: 
Decisions under which the federal government today meddles in 
almost every man's business^ and under which our government has 
greatly changed from a rather free representative government to a 
comparatively despotic bureaucracy. Then 25 years later came the 
Dred Scott decision — ^good law, undoubtedly, when it was written, 
but reversed by the arbitrament of battle. Twenty-five years 
later came the slaughterhouse cases, in which finally, after much 
discussion, a new citizenship was established, federal as distin- 
guished from state, and admitting corporations under the word 
"persons** to the protection of the Fourteenth Amendment. 
Twenty-five years later came the decisions under the Sherman 
Act. Bightly or wrongly, the people had come to regard those 
great aggregations of capital, those octopi, if you please, with 
their tentacles in every part of the country and their digestive 
organs in New Jersey, as inimical to their welfare. And now, 25 
years later, come these labor dispute decisions. The Clerk of 
the Supreme Court tells me there are a great mass of those cases. 
And not the least important of these recurring cycles of decisions 
are these labor cases. 

It is somewhat curious, when you look back over the history 
of that court, because the precession of the equinoxes, the resur- 
gence of the tides, is hardly more regular than the recurrence 
of these great questions. Upon the solution of these questions 
depends the industrial future of this country, for this country 
today is shifting from an agricultural foundation to an industrial 
foundation. 

Now, a word as to the operation of this law, and how we regard 
it in Kansas. Since the law was passed, Governor Allen has been 
twice before the people of Kansas and overwhelmingly endorsed. 
At the last primary election, just closed, (Jovemor Morgan, who 
heartily supported the law and the administration, received a 
plurality of 15,000 votes over his nearest opponent, (Jovemor 
Stubbs. Governor Stubbs also supported the law without reserva- 
tion. Those two candidates received over 70 per cent of the total 
primary vote. The other three, who condemned the law. were 
overwhelmingly beaten, and the man who made an alliance with 
the Union-Labor vote, got a mere 15,000 votes. 



F. DUMONT SMITH. 217 

Today in Kansas the great railroad shops at Topeka are func- 
tioning at 75 per cent of normal^ those at Chanute at 90 per cent, 
and onr railroads are running on time, and there is no interrup- 
tion of either production or distribution. We are mining 260,000 
tons of coal a month, enough to supply the state of Kansas, and we 
confront next winter with cheerful tranquility. There is no 
picketing in Kansas, and for that reason the strike is being broken. 
In Colorado, Governor Shoup has put down picketing and violence 
with 60 rangers and they are mining more coal in Colorado than 
they were before the strike. 

But the distinction is this. Governor Shoup will go out of 
office in January and like Cromwell leave no succesor and no 
system to take his place. Governor Allen, with far-sighted con- 
structiveness, has established a piece of administrative machinery 
that will function regardless of governors. 

I want to make a criticism, but I am afraid there are some 
Illinois people here. However, I'll chance it. Government do^s 
not depend so much on laws as we lawyers are apt to think. 
When the people of a commonwealth elect an Allen or a Shoup 
governor, they are rewarded with industrial peace, with continuity 
of service, of production and distribution. When a great com- 
monwealth like Illinois elects a Lem Small, it is rewarded with 
the black shame of the Herrin massacre, more cold-blooded, 
brutal, and ferocious than anything the Huns committed in the 
four years of warfare. That Herrin afEair was the fine exfolia- 
tion and flower pf the union labor spirit among the miners. What 
they did at Herrin, they would do everywhere if they dared. Let 
me pause there for a moment. You hear a great deal about this 
wave of lawlessness, this flood of lawlessness, contempt and dis- 
regard of the law. Does it all come from below? Far from it. 
Very much of it comes from executives and police officers who 
are functioning with one eye on the next election, who are pan- 
dering to the lowest classes of society for votes. What can you 
expect of these ignorant, foreign-born citizens, slaves and Helots 
for a hundred generations, suddenly freed, dnmk with the new 
wine of liberty, when we set before them the example of governors, 
mayors, sheriffs, police officers, and police magistrates, who them- 
selves defy the law and fail to recognize or enforce it? And that 
to a large degree, my friends, is the source and fountain head of 



318 THE KANSAS INDUSTBIAL COURT. 

this flood that is overwhelming U8. It is astonishing that in a 
country like this that worships conrage as one o{ the supreme 
virtues^ a country that rewards a Boosevelt or a Coolidge with the 
highest honors in its gift^ that in such a country the average 
politician should believe that the road to political suoeess must 
resemble the tortuous track of a hunted rabbit. This country can- 
not endure half law-abiding and half lawless. The law-abiding in 
self-defense will become lawless. And that infection is spreading 
over our country. We are told by the optimists that this is 
the richest^ the greatest, the most powerful nation the world eyer 
saw. And that is true. We stand today upon the very pinnacle 
of this world^s power and prosperity. But in the essential verities 
that constitute a state, the protection of life and property and 
human liberty and freedom of speech, and above all in respect 
for the law, we are far below our British cousin. In fact, I think 
we rank a little above the Turk and the Balkan States. We are 
rich. But wealth is not all. There is such a thing as fatty 
degeneration of the soul, and this nation shows every symptom 
of it. It is true we saw in 1917 that the fire on the altar could 
flame as brightly as of old. But fitfully, not steadily — and it has 
died down. And in the rery hour of the nation's peril, the trailing 
garments of liberty were slimed vrith the greed of countless profi- 
teers. Remember, other nations, as great and strong as we, 
comparably to their times, have trodden the path we tread today 
and gone down to ruin and death. 

Steep are the steps, slow hewn in flintiest rock. 

States ohmb to power by, 
And slippery those with gold, down which they 

Stumble to eternal mock. 



THE WIDENING RANGE OP LAW. 

BY 

LORD SHAW, 

OP DUiNFBRMUNEV SCOTLAND. 
MEMBEB OF THE PBIVY COUNCIL OF HOUSE OF LOBDS. 

I deeply feel the honor of your invitation. And I sincerely 
recognize the hearty cordiality of your welcome. This great 
audience; the eminence of the men whom I see around me; the 
resonant call of professional brotherhood; the deep respect for 
the law which inevitably accompanies the progress of the Anglo- 
Saxon race ; the unifying, harmonizing note which the law thus 
adds to the aasociations of history and literature and blood; all 
that kind and rank of ideas come tramping through the mind 
at such a meeting as this. You Americans speak in terms of 
space^ with a frank and honest pride in the glorieb of your 
breadth of continent. Englishmen speak in terms of time, 
with an august devotion to a mighty history. But it is left to 
the Scotchman to overleap both space and time in the terms of 
human brotherhood. What matters 'it to him '^ though seas 
between us braid hae rowed *^ ? What is it to him, the ancient 
grudge of four generations? He has come and thriven with 
you and helped to live that down: The large vision seems not 
unnatural to him, looking before and after : He knows about the 
Clan feuds, sometimes serious and sometimes silly, and he has 
outlived them all. The lion can lie down with the lamb, even 
the Campbell with the McGregor. If I could presume or dare 
to represent even for a few brief moments the land that bore 
me, I should say as my first word to you today: Again and for 
ever we are trusty friends. We can brace ourselves for the 
future which is coming, by taking in any beverage which is 
according to law ^' a cup of kindness yet, for the days of Auld 
Lang Syne.*' 

By invitation, addressed to me in terms of grace and courtesy 
similar to those of your own, I address next week the friends 
of the Canadian Bar Association, at Vancouver. The bi^other* 
hood in law of this vast North American Continent has. gath- 

(219) 



220 THE WIDENING RANGE OF LAW. 

ered at the shores of the Pacific at one of the greatest con- 
junctures of human history. Was this by accident or by design ? 
Anyhow^ the event has a singular^ a unique interest. My reflec- 
tions upon it and upon its happenings in 1922, have led me into 
a train of ideas, the brief exposition of which may,^ I trust, 
hot be unacceptable to this gathering of thoughtful men. Do 
not ask me to ticket them by a name. The philosopher or jurist 
would hanker after some such title as '^The Widening Power 
of Jural Conceptions.^' Plain people like ourselves would simply 
call it " The Widening Bange of Law."  

Stand aloof for a little and watch that moving, jostling, elbow- 
ing, combatant crowd which we call civilization. There is a 
figure there that is bigger, more upstanding, more commanding 
than on your last survey. More and more he seems to control 
the crowd, suppressing confusion, regulating traffic, making the 
rough places plain and every place safe: and his hand is swift 
and heavy on crime and on the sneak, and tender and helpful 
to the weak and the struggling and the oppressed. His name 
is law. When he gets into his working garb we call him Juris- 
prudence. For Jurisprudence is just law with a gown on. And 
if it is, as it should be, a roomy gown, it neither chills his heart, 
nor impedes his growth. ' More and more, as you are seeing 
with your eyes, that noble honest figure is becoming a leader 
and commander to peoples, classes, states and nations, whose 
combined movements, as I say, are civilization itself. And more 
and more he is getting more real wisdom, more understanding 
and heart. But by the Widening Range of Law I mean not 
merely that deeper invasion into the secrets, the motives, the 
regulative ideas which govern the relations of men, but also that 
objective side in which law is more and more conquering wider 
fields, more and more vindicating its functions, not among indi- 
vidual citizens alone, but also among great ranks and classes of 
society, and even moulding the policies of states and common- 
wealths, and among them all and everywhere placing reason 
against passion and right against power. At this hour, after 
the Oreat War, even as the smoke and horror and the smell of 
blood clear away, law resumes its sway, planting anew in a 
bruised and bewildered world the standards of legality human 
and divine. Oood are treatises, better are treaties; but the 



LOBD SHAW. 221 

world is a disillusioned world and it has grown tired of them. 
It longs for facts^ some solid ground in which the law can 
have its chance unless good faith be banished from the earth. 
Something accomplished, something done, something well and 
truly laid, something more than diplomatic gestures or a paper 
pledge; that is what is required. The nations have lost confi- 
dence in each other. 

In ancient Borne the first obvious contracts were real con- 
tract; the consensual came later. As the majesty of law ex- 
tended, the consensual contracts became common because behind 
them there lay the power not only of interpretation but enforce- 
ment. Believe me, until the majesty of the law is established 
with similar powers of interpretation and enforcement among 
the nations, the nations must begin again, they must tread the 
historical road, they must have real contracts, actual accomplish- 
ments, things done and things given up on both sides, before 
men will believe that true progress has been resumed. It is for 
this reason, gentlemen, that I reckon the Conference of Wash- 
ington to have been greater than a conference, and the Five- 
Power Naval Agreement and the Pour-Power Pact for the 
Pacific Ocean, the one with its real, instant, and definite limi- 
tation of armaments, the other turning possibly this great ocean 
into a vast Pacific reserve — I reckot these things to be a sensible 
mitigation of the fears of humanity, a sensible contribution to 
the peace and progress of mankind. It seems quite a natural 
thing that after those pacific triumphs you should have these 
pacific celebrations. So reckoning, we heartily bear in mind 
the services and achievements of America in the world cause, 
and the firm and practical statesmanship of its President 
and Secretary of State. Especially today do we think of the great 
lawyers of your and many nations as they went on trying to 
hammer into a solid fabric of results those ideals and aspirations 
which all peoples cherish who claim the rank of civilized states. 

These are some of the reasons, Mr. President, which make me 
feel, with a deeper note of gratitude, the historical interest of the 
occasion on which you have asked me to address you. 

Of course, when lawyers foregather, they are apt to confine 
their discussion to the present, and to the immediate future, and 
to their own very wide-awake good selves. But the strength of 



222 THE WIDENING RANGE OP LAW. 

these great conferences is shown when they have leverage enough 
to get men out of that rut. Occasions arise when history and 
events vividly and savagely compel that. The best amongst you 
probably look back to the later fifties and the early sixties — ^that 
trying ordeal for your citizenship. Then it was that the law of 
status and the law of the Constitution had to be co-ordinated, 
and that under the higher planes of liberty and the rights of 
man. Lowell puts the old view which the older l^aUty could 
always defend. ** Here I stand on the Constitution, by thun- 
der'*; 

Human rights hai'nt no more 

Right to come on this floor 

No more'n the man in the moon, sez he. 

These were defensible, very defensible, propositions in the 
mouth of a mere lawyer, a mere constitutionalist, a mere politi- 
cian, and Lincoln was very patient with them. But when to 
yield to them would have been to rive in twain the American 
Commonwealth, then his heart, always true, cleared his vision, 
and he seemed to reason that man was more than constitutions; 
that the law was made for man^ nx)t man for the law. So it was 
that the courage and essential goodness of his statesmanship and 
the loyalty of your great people to truth consolidated at one 
stroke the cause of the unioi and of human freedom. 

Then in the common and everyday relations of man with man 
(and these demand after all our first regard), the range of your 
law became mightily extended. That law jof status, if law it 
could be called which had travestied the patriarchal system and 
would have turned back even the clock of Bomou jurisprudence 
as it went on opening more and more widely the doors of its 
citizenship — that law of a status disappeared and the law of 
contract took its place over the wide areas of many states. The 
West Indian precedent — ^very nobly conceived and very wisely 
accomplished by England — was of but slender proportions, and 
compares with your struggle literally as an insular with a 
continental achievement. Hard and difficult and many a^ were 
the legal problems to be solved, I declare to you that it fills me 
with wonder to reflect upon the comparative ease of the tran- 
sition, upon the adaptability of your legal machinery, and upon 
the practicality of your people. 



LOBD SHAW. 223 

This on the civil side; but on the criminal side yonr task 
was greater stilly and it is not yet complete. Race, color, the 
memory of oppression; these are very real things to be suddenly 
let loose in a citizenship of freedom. They leave the lawyer and 
the reasoning citizen an irksome but a high and responsible 
duty. And to this hour a high and responsible duty it remains. 
That duty is to save hberty and order alike by that equal hand 
and that noble and resolute bearing of justice itself, which are 
shown by respect and true fealty to the regular administration 
of the law. Every man his own avenger I the sudden ferocities 
of lynch law I Wherever the English tongue is spoken the 
ground is too sacred for that; wherever free men reason together, 
jurisprudence renders to justice a sincerer and more stately 
homage. 

A lesser, but yet quite notable extension of the range of law 
has occurred in the emancipation of women. I presume that 
you have, as we have, Married Women^s Property Acts with their 
sequels social and legal. The case, however, is not here the 
same^as with the enfranchisement of the slave; it is not the 
substitution of the law of contract for the law of status; it is 
their reconciliation with each other. I daresay you find the 
contract side of it not unmanageable, but — on the status side — 
how. you get along with the variety of state law and state legis- 
lation on the subject, say, of divorce, and still keep your heads, 
and are able to attend to business — this fills me with wonder. 

I know how difScult it is to harmonize state laws. England 
has been trying for a generation to approximate to the decent, 
sensible, easily working law of Scotland in this department of 
the matrimonial relations, and as yet it has failed. Of all the 
forms of amour, the one which is most ridiculously hard to ac- 
commodate is amour propre. This is certainly so among states 
and nations; and legal reform which points to homogeneity is 
of the derided and suspect I • 

Meantime, the range of your laws for all professional breth- 
ren who practise and advise must be immensely increased by 
home-made difSculties. And these, I should reckon, bring in 
their train a goodly store of troubles in the regions of domicUe 
and fiuccession. Is the harmonizing of your laws of status a 
vain dream for the United States, an objectionable or imprac- 

8 



224 THE WIDENING RANGE OF LAW. 

tical idea? Pray forgive me, I do not mean to intrude, or 
eren to suggest. But you must take me as I was made and I 
cannot help thinking. 

A few brief words only, and those of nothing but commen- 
dation of your law of contract. In your case it was not, as in 
the jurisprudence of Bome or of England, au evolution from a 
rigidity which had grown barren to a fruitful flexibility which 
better met the needs of man — ^a slow, centuries long, education 
and adaptation. Tour jurisprudence sprang fully armed like 
Minerva from the head of Jupiter. Bather a strained figure 
that 1 For I was meaning Jupiter to represent the Common Law 
of England, and therefore I was referring to Jupiter at the time 
he led a decent life — say, after he had overthrown Saturn and 
before his flirtations began I In this department of jurispru- 
dence, the law of contract, your services have been very real^and 
in its literature almost monumental. The labors of Story lift 
your representation to a great height. And when that gifted, 
brilliant American, statesman and lawyer, Mr. Benjamin, landed 
on the English shore, we received with no grudging admiration 
his work on Sale; and the man who wrote it ranked with our 
hearty good-will among our highest in the law. 

I venture to accentuate this solidarity between England and 
America on Contract Law. In your case its principles inform 
and regulate over a vast and active continent stretching from 
ocean to ocean. In our case they interlace the world. Natur- 
ally, the same principles are found, and possibly even better 
co-ordinated, in other lands — say in France imder the Code 
Napoleon : Naturally they are derivative from ancient systems ; 
historically they may be said to have foimd luminous exposition 
by the immortal jurists of the Age of the Antonines, who subtly 
threaded their way through technicalities into the open air of 
fair dealing. A claim of monopoly would be absurd ; we do not 
set ourselves up as the first and true inventors. But it is ours 
to acknowledge and to share, and over vast spaces of the earth 
to distribute a priceless inheritance, which has helped to dissi- 
pate the misunderstanding, to smooth the intercourse and to 
ihcrease the comforts of mankind. 

It is the fact of this common inheritance which lays a special 
obligation upon the lawyers of the Anglo-Saxon race. Between 



LORD SHAW. 225 

them^ the United States and the British Empire, largely shaxe 
the distribution of the resources of the earth and the manufac- 
ture of those resources for the use of man. Take the old Soman 
classification, if you like, say, of the consensual contracts : Sale 
(Emptie-venditio) ; Agency (Mandatum) ; Hiring (locatiO' 
condudio) ; and Partnership (Sodetas) , How embracive the 
category is I But did ever the wildest dreamer among the 
absolutists of the ancient world conceive of the vast fertility of 
illustration of the items of the list which a new world displays ? 
For the emptia-venditio go to your emporia, your bourses, your 
exchanges. For Societas, watch your great Corporations, sd 
powerful as to threaten to dominate legislatures and states. 
For Locatio-conductio, see your networks of railways, your 
shipping enterprises^ your transport linking ocean with ocean. 
. For mandatum, your drummers drumming everywhere, by land 
and sea. 

Greater than dreams have your enterprises spread ; but, spread 
they ever so far, one thing accompanies them, inexorably, inevit- 
ably, as shadow follows substance. With them all goes the law. 
It checks misdeeds, ensures equality of appeal, removes crooked- 
ness and chicane, respects neither rank nor power as between 
the bargainers, ever and everywhere insisting on a square deal; 
ever and everywhere taking its stand on principles whose foun- 
dations are truth and whose comer stone is honesty. See how 
glorious your profession is I See how mistaken those are who 
think it outgrown or effete! I have a respect for theology; but 
its timidities and some of its ongoings, in times which demanded 
plain and frequent ethical reminders, have made me not so sure 
about it. Anyhow, I am venturing in your presence the propo- 
sition that in this age which so often shows itself a brazenly 
material age it is the profession of the law that is the unques- 
tionable instrument of an appeal, not to technique, not to vogue 
or fkshion or more correctitude, but in the ultimate resort to 
ethical standards which no age can outlive, and no progress can 
trample underfoot. 

I am not a professor, nor the son of a professor, and I claim 
no title to inflict upon you an address enumerating categories 
or laying out elaborate parallels. I have not learning enough to 
speak to learned men didactically, but one cannot have lived 



i 226 THE WIDENDrO RANOB Oi? LAW. 



through a long and varied professional life withont certain 
things having stood out^ as able to stand the test of experience^ 
as very real and on the whole very helpful things. My only 
wish is to speak to you today more by way of simple contributing 
to the common stock of ideaa which we put into our mutual 
exchange. Therefore I do not presume to dwell much further 
on the Law ' of Contract or to pass definitely to propositions on 
other definite sections of the law. Let us simply go on thinking 
together. 

It does strike me^ for instance, that apropos not of contract 
alone, but of many other branches of the law, there is a two-fold 
development which, having a historical origin, is very notable and 
very wholesome in our own time. The age has gone by for 
symbolical and ceremonial procedure which has lost its useful- 
ness and meaning. In regard to the sale of real estate what 
changes have occurred even in my time! As a boy, I have 
copied out deeds which have narrated with precise notarial detail 
how seisin was given — actually given — ^for lands by handing over 
earth and stone, for mills by the giving of clap and happer, for 
houses by hasp and staple, for fishings a net, for annual rents 
a penny, each tangible thing sold having its tangible sample 
and symbol which made visible the entry of a new owner and 
possessor. The appeal to the sense was plain : The notary certi- 
fying " vidi, sdvi, et andvoi," with lots of other Latin added — 
or a raw and canine order. Nowadays, the substance of sale 
remains, but the symbolism of the real contract has passed away. 
The literal contract has been reached, and all stands alone upon 
the written word. Now turn this matter about. From the real 
contracts where more than the written word was required; look 
now at the purely consensual contracts which required no writing 
at all. The means for the transmission and record of thought 
have now vastly changed from the day when the Boman pain- 
fully recorded the literal contract with his stilus on a tablet of 
wax. Then consensual contracts stood a great way apart from 
literal. But now, with the spread of education and the advance 
of science, the use of letter, of telegram and of the telephone 
message confirmed by the business man's note — all these lift the 
bulk of the consensual contracts into the grip of a literal record, 



LOBD SHAW. 2S7 

and that so effectively that one may explain the record if it be 
ambiguoua^ but^ if not, one must stand to it, and to vary it is 
bad law. 

From these two directions accordingly, the one where all was 
form and ceremony, the other where there was the spoken word 
alone, the force of the legal pressure of later days has be^i 
concentrated upon the construction and interpretation of the 
written word. This is so in a sense applicable far beyond the 
range of individual bargains and covering not them alone but 
writings of aU kinds, wills and settlements, deeds of gift, and 
trusts; higher still articles of association and prospectuses; higher 
still legislative acts and statutes themselves ; and then still higher 
the constitutions of states and provinces, of dominions and com- 
monwealths. 

« 

There thus come into the literature of law powerful and 
profound books, and a wealth of cases so perplexing as, if yielded 
to, would drive analysis to the point of contortion and the lawyer 
or student to confusion and sheer mystification of mind. It is 
so in the humble and ordinary life of the practitioner. As the 
range of law widens and arises, then the clash of interests and 
the intrusion of prejudices social and national and international, 
are apt to disturb fair judgment and all this makes a grounding 
in the principles of true interpretation, imperative as a salvation 
from sheer mischance of such a nature were the problems which 
confronted the greatest of American jurists John Marshall; 
and his masterly solutions lifted the office of Chief Justice of the 
United States high among the great places of the center and 
tinked it for ever with his name. When you consider what the 
handling of these problems means in the equipment of the 
human mind, then you get some light on the phenomenon that 
in all ages and in nearly every country the profession of the 
law gives its quota of power to statesmanship and public life. 
Exposition is the skill of the lawyer; enforcement is his art; 
but interpretation is the foundation of his science. 

To get at the essential meaning which the words under con- 
struction signify is a psychological exercise far too little appre- 
ciated. It is in modem as in ancient times, -there are serious 
obstacles to getting at the true interpretation of disputed words. 
In ancient times the obstacle was formality — ^in modern times 



228 THB WIDENING RANOB OF LAW. 

it is authority. A consensus ad idem did not of old get into the 
region of discussion until a minute examination had been made 
into the forms and ceremonies in which it had been clothed. 
Did these f ail^ as the law prescribed, then the examination, the 
true interpretation, ended before it had begun. These hare 
now largely disappeared from the ground. But in their place 
and now for generations in their place has grown up a new 
obstacle^ thick as the jungle. The words haye already been in 
the hands of the judicial commentators; and, as is the way with 
commentators, the one refers to the other and the third to the 
preceding two till the text is obscured aad the vision of the 
interpreter cannot get through the thicket except at the risk of 
his being considered a rebel and iconoclast. Any recent statute 
forms an illustration ready to hand. Hardly is it bom into 
the world, till judges fall upon it, tearing it analytically to 
pieces; and unless they called it at least inartistic they would not 
be in the fashion I But then their turn comes; and their fre- 
quent Unes of error are produced and produced with a touching 
deference, till by and by the plain English of the act does not 
know itself ; and only great judges take the liberty to announce 
that the act means what it says. If you have in your great 
country statutes like the Employers Liability Acts and the 
Workmen's Compensation Acts, such as we have in ours, you 
may have an inkling of my meaning. 

The danger of obscuring the text by the commentaries is not 
confined to statutes of the realm. It appears over and over 
again in humbler and more homely spheres. Particular words 
of a will in a certain context are interpreted to mean one thing 
and it is so decided; then the same words in quite a different 
context are held to mean the same thing, because it has been so 
decided. Thus so-called rules of construction are formed — ^the 
rule in this case or the other — and they are applied, amidst 
difSculties which no well-instructed practitioner daxe avoid, al- 
though he and everyone else knows that the meaning put upon 
words is very different from what it would have been if the 
ground had only been clear. 

I have observed with no little satisfaction, in recent years, 
a more determined effort towards reversion to the text itself, 
and a desire to avoid shackling the ordinary English language 



LOBD 8HAW. 229 

with conventional fommlfle. A conyenient illustration of what 
I mean occurred no later than last year in the case of Lucas 
Tooth. It appeared that the ordinary expression^ the simple 
word '' then/' had been the subject of repeated decisions and so 
had been given a cast-iron and conventional turn. One noble 
Lord stated thus the tendency upon which I have been venturing 
to reflect: . 

When a category or enumeration, ventured upon even by high author- 
ity, is sought to be imposed upon a simple and oonunon word of the 
Fngli<ib language, courts of interpretation must preserve their freedom 
of contact with toe mind and meaning to be interpreted, that mind hav^ 
ingused the medimn of unartificial and ordinary speech. 

\Vords themselves change in meaning ; even punctuation, or the order 
in which tfcdnes are set down may have its significance; ana the nuances 
of expression have an infinite variety. Out of the categories or generali- 
sations you may no doubt construct a machine which would stamp 
ordinary words with a meaning which their author would promptly 
disavow. The generalization becomes a category, the categorsr becomes 
a rule, and the rule becomes a bed of Procrustes upon wmch words 
and expressions must be stretched, but which, as one is unhappily 
conscious, they can only Be made to match by torture or by mutilation. 
The meaning of the testator is not thus reached, and misinterpretation 
results. 

The case of Procrustes occurs often enough. The literalisty 
very loyal to authority, stands within it as within a fortification. 
If you tell him that " the letter Idlleth but the Spirit giveth life ^' 
he asks you for the reference; and then^ when you give it^ he 
says that he has not got the book in his library. Tet must it not 
be true that wherever that spirit has been violated^ then it stands 
to reason that some element of mischance may have crept in? 
Alas ! in this world the smooth has to be taken with the rough, 
and literalism with its mischances haa the merit at least of bind- 
ing judges and interpreters to construct the actual terms em- 
ployed, without daring to invent for themselves another mean- 
ing not out of the grantor's words but out of their own head. 

I grant that point; but when that is granted all is said in 
favour of the Procrustes method. VHiat then, gentlemen of 
the Bar, what is to be done? Struggle and wrestle you must 
with these difiSculties, sometimes on an immense scale. Take 
my advice : the figure in mythology which will help you most is 
not Procrustes the tyrant of the iron measure, but a giant and 
a stmggler like yourselves, by name Antaeus. According to 
tradition he was a great fighter. He overcame and subdued all 
enemies, but the secret of his power was that, being the son of 



230 THE WIDENING RANGE OP LAW. 

Neptune and Terra, of ocean and of Earth, he kept his feet in 
touch with mother earth and thus found, at every crisis of battle, 
refreshment and new life. Finally he was overthrown; but 
Hercules could not have accomplished the task except by lifting 
him from the earth and squeezing him to death in the air. 
There is our lesson as interpreting, constructive lawyers. Let 
us keep in touch with mother earth. Do not let any Hercules of 
convention lift us from that ground of common sense to which 
we owe all that strengthening, all that re-invigoration, all that 
vitality which nerves us in the struggle. So surely as we shall 
be lifted above the realities of the case, then so surely shall we 
be overcome. Stand squarely on the solid ground of mother 
earth; even in the struggle where many authorities are heaved 
at you and many rules, and the wisdom of many ancients are 
fired at you to blow you into the air, stand firm, and you will 
grapple with all these assailants and all their weapons. In the 
end you will triumph by the strength of vision which has 
enabled you to see beneath decided cases their true essential 
meaning and to test authority even in its highest decisions, not 
by head notes or rubrics, but by the fundamental principles 
rooted in reason and grounded in sense which in the particular 
case they purported to expound. 

Yes, there have always been, and to this hour there are, two 
schools in jurisprudence; the school of Procrustes, and the 
school of Antaeus. I suppose the tyrant Procrustes had his 
uses although I have never had much favor for him. But An- 
tseus guides the whole life. The lesson of his strengthening 
contact with reality is a lesson forever. 

This determined loyalty to sense of truth never degrades but 
always adorns the law. This it is which is the death of trickery, 
which is the searching out and the stamping underfoot of fraud, 
which is the unravelling of the dexterities of deceit, which is the 
homage to justice which underlies every act of a professional 
man. No, in this enterprise of searching for truth, no greater 
advances have been made, probably in any age, than in our own 
time. But beneath it all there lies that essential fundamental 
fact to which I have alluded, that there are standards of inter- 
pretation which are solid and infallible, and any resort reached 
even by the most casuistical interpretation which varies these 
standards is a line which leads to loss and misery and wrong. 



LOBD SHAW. 281 

Upon this topic, one department of law to which I specially 
refer is that in regard to the rescission of contracts. In Scot- 
land it is called a reduction^ and until a few years ago it was 
expressed in an emphatic redundancy worthy of the Schoolmen 
of the middle ages. The will or testament, a contract^ a gift, or 
what not was to be '^reduced, retreated, rescinded, cassed, an- 
nulled, decerned and declared to have been from the beginning, 
to be now, and in all time coming of no avail, force or effect in 
judgment or out with the same and the defender reponed there 
against in integrum.'^ 

ITow was not that a mouth filler? And many a battle has 
been waged over the issue which it raised. You know the sort 
of inquiry to which I refer. Many of you have no doubt had 
enthralling adventures in that line. The whole department is 
founded on the simple proposition that a thing which is essen- 
tially a wrong as between man and man should not stand. I do 
not enter into the refinements as to the declaration in one case 
as to whether the deed or document is ipso jure void or whether 
it it only voidable. I am upon things much more fundamental 
than that. The categories of fraud, of concealment of essential 
particulars by one party from the knowledge of the other, of 
duress in the sense either of actual '^ force and fear'^ or.xmdue 
infiuence by such predominance of the will of one party over 
that of the either as to make the latter not a free agent, all that 
set of causes which comes before the courts, are the assertion of 
one fundamental principle. That principle is that law will 
not recognize if it can avoid it, any act, agreement, contract or 
obligation unless these are acts of men who were both truly 
sane and truly free. Justice becomes the handmaid of truth, 
jurisprudence the vindicator of freedom. 

The essential privilege of law is to defend the canon of its 
equality — ^namely, that all must have equal treatment by the 
law, as the broad inevitable resultant right of free citizenship. 
When every citizen can truly feel that the law can be appealed 
to as his friend, then strength and healing come into the body 
politic and the function of law, even on the every-day level of 
individual disputes and of differences between man and man, 
adds to the healthy sense of independence which is the essential 
of progress. But whenever men, decent men, not rebels or 



832 THB WIDBNINQ BANGS OF LAW. 

criminals^ cower beneath the law, being afraid of its inequality; 
Baying to themselves " the world is not my friend, nor the world's 
law,'' then they become the starved apothecaries of society and 
are tempted to meannesses and evil ways. And that society is 
rotten where one citizen as against another can overpower him 
or undermine him by law wielded with an uneven hand. Only 
the blind, the cruel, or the unjust in heart can wink the eye 
at this unnameable curse. 

Probably upon this continent, great as it is, you do not recog- 
nize that wide plane of equality to which I refer. It is your 
privilege to distribute justice to that marvellous agglomeration 
of races which America has taken t6 her broad bosom. She 
speaks to them the English tongue; she nourishes and educates 
them in the practices of freedom, she inducts them into that 
fundamental respect for organized society which only law can 
conserve : Above all no race, religion, color, origin, dare, arrest 
or deflect the course of justice. All alike are equal before the 
law. These every-day things, the straight deal, the even hand so 
commonplace are they that one is apt to lose the sense of their 
enormous power. 

From every disorganized quarter of the globe this rich land 
becomes a refuge in which, to its astonishment, right becomes a 
real possession, maintained unfalteringly between the highest 
and the lowest, the richest and the poorest, and the appeal to 
law is itself a right universal. But when I speak in these high 
terms of freedom and independence, of equality and right, as 
they are known within your borders, I cannot restrict my vision. 
My own experience forbids me. Next week I shall have to ad- 
dress the Bar of Canada on particular problems connected 
with the administration of Justice by the Judicial Committee 
of the Privy Council. The jurisdiction of that body extends 
over one-fourth of the population of the globe; the jurisdiction 
of your Supreme Court added to that makes the principles of 
our laws cover nearly one-third of the human race. But how 
wide soever may be the range, you and we recognize that this 
is not a question of what race, creed, nationality or people, law 
is to be applied to. It is a question fundamental to the admini- 
stration of widely different laws and systems of jurisprudence, 
some modem, some traditional, some tribal, some as old as 



LOBD SHAW. 233 

recorded history, wherever a system of law or jurisprndence is 
worthy of the name these fundamental principles and especially 
this canon of fair and equal treatment must apply. 

Now that I am upon this topic of what I may call the funda- 
mentals of law, its deep basic universal principles, I recognize 
too well the needs -of the occasion and the limitations of my 
own capacity to venture upon a detailed or didactic exposition 
of a subject so large and grave. 

But as we go on thinking together, would you suffer from 
me this: 

Having had to study for many years the clash of opinioh 
and the collision of interests, not alone between individual men 
but, on a higher range, between classes of society, and, on a 
still higher, between state and commonwealth, between province 
and dominion, do let us hear in mind the correlations of things. 
If the correlations of things be truly grasped, then the very 
secret of justice has been unveiled. 

Let me try to explain to you what I mean by this. The ideals 
have in them nothing abstruse, nothing revolutionary, and, as 
you know, there is nothing new under the sun. If any of you 
smell Hegel and German philosophy about, I cannot help that. 

Take that thing which we call a man's right. He ought to 
be able to vindicate it against all the world. But one imperious 
and resounding prohibition is laid upon him ; he cannot take the 
law into his own hand. And well he knows if he thinks of his 
own right and of himself alone, and begins to exercise it with 
that sole idea, then collisions will take place, he will encounter 
surprises and mishaps and he will come to grief. What has 
happened to him? He has forgotten that the correlative of 
right is duty. Sic utere tuo id alienum non Icsdas, But the 
law does not forget it. And that law which he dare not take into 
his own hand as a master he can appeal to with the submissive 
mind. For justice exists; that austere reconciler of right with 
duty. As deep and elementary as the distinction in philosophy 
between the ego and non-ego, is the broad plain fact that there 
are others in the world besides the appellant who also have 
rights, and that the interdependence of rights and their poise 
and balance with duties is secured by the arbitrament of a third 
principle, namely, justice itself. Justice conserving the rights 



234 THB WIDENING RANGE OF LAW. 

of all, and commanding the duties of all, issues its decree that 
right and duty must dwell together in the peace of mutuality. 
In this mutuality of rights and of duties both can be evolved 
into that glorious harmony wherein law is vindicated, force 
restrained and progress possible, and peace among men the 
every-day achievement of social life. 

Do not please, be superior to these views about the correlation 
of ideas. You may find before we have done with them that they 
have a far reach. 

Let us now leave the ground floor, on which are exhibited 
those ordinary difl5culties which demand solution and settlement 
between citizens in ordinary life. Let us ascend, taking our 
principles with us — always doing that — into the higher and 
wider regions of the relations of class with class, religion with 
religion, party with party, political, economic, industrial. Here 
in a moment we feel the need of principles and the supreme 
usefulness of those in this wider air. Here again, I repeat it, 
do not, please do not forget the correlatives. As on the more 
ordinary level the plainest correlation was between right and 
duty, now a further correlation has appeared — the correlation 
of order with liberty. 

Disputes among classes are wider in scale, often more sinister 
in the appeal both to- force and to prejudice and more dangerous 
to society at large. But the figure which must now stand 
'' betwixt the fell incensed points of mighty opposites '' — is still 
as before the same august figure of justice itself, with law as its 
instrument of reconciliation. 

Again the temptation is great to exult in liberty and to 
achieve its own rights at its own hand. The temptation is vastly 
reinforced by combination, and sheer lawlessness gets many to 
defend it. 

Something has been forgotten in all this, namely, a correla- 
tive, and the correlative of liberty is order. Society, however, 
even in convulsion demands that neither class, religion nor 
party shall be denied freedom, that that freedom is a noble 
thing, so noble that the freedom of all must be protected by 
the freedom of each being exercised within the limits of public 
order. And so freedom and order are made to dwell together, 
and the opposites are correlated by a third entity, that austere 



LOBD shaW. 236 

reconciled justice, and society is saved. The brutalities of force 
are subdued, the widespread miseries and sorrows of combatant 
and non-combatant alike are assuaged — ^these yield to the arbi- 
trament of reason. The submission is made to justice and to law 
under appeals which are oftentimes conducted on both sides with 
the most accomplished skill. I can in my own experience as an 
arbitrator testify to this at first hand. * 

The range of law on this higher level is wider. Sometimes 
the texts of statutes are cited, sometimes the rules of common 
law or even its procedure; but everywhere and always those 
principles are appealed to which give equality of treatment, the 
just poise and balance, the rights of each to be duly respected, 
the duties of each to be faithfully performed, under conditions 
of discipline which will yet preserve freedom unimpaired, but 
make it a well-ordered freedom. And above and around and 
beneath all an undying homage must be paid to the eternal 
principles of justice and the square deal. 

To each class equal law must be applied. To take an illus- 
tration, once an agreement is reached under free and orderly and 
equal conditions such as would sustain an agreement on the 
principles of law, the duty of the employer to pay and the 
right of the worker to receive wages as per the agreement and 
these to the last cent, and the right of the employer to receive 
and the duty of the ;(vorker to give work as per the agreement 
and that to the last minute. To neither is chicane or adultera- 
tion permitted. The worker gives true and not adulterated 
labor; the master gives true and not adulterated coin. The true 
metal on either side; no alloy; no quibbling; honesty forbids. 
Be very frank and fearless about this. N"o liberty of any class, 
no discipline by any class can evade this : The attempt whether 
by intimidation or force on either hand is tyranny; honesty 
forbids. 

I take no gloomy view of all this. For I recognize that more 
and more as moral and economic education proceeds, the ranks 
of all classes are coming to recognize that the way both of 
prosperity and peace lies in the recognition of those standards 
which are at once ethical and legal standards. 

Every other weapon breaks in pieces or explodes in self- 
destruction. And every one that wields it, as is th^ d^ in 



836 THE WIDENING RANGE OF LAW. 

Russia today^ from the despot doctrinaire downwards to the 
famished dying innocent millions, every one must sooner or 
later feel that 

Tis safer to be that which we destroy 
Than by destruction dwell in doubtful joy. / 

Time was when the so-called governing classes called for disci- 
pline^ f 09 order^ order and more order, with a gibe and a blow 
on the head for liberty whenever it appeared. That was the 
despot's code. And then the time comes when the vaunted order 
is overthrown by those very forces of liberty which it was trying 
to repress. 

Then another era arises, and liberty has its spell of excess, 
breaking up all order in its early headlong career, then liberty 
breaks into anarchy, and falls^ groping after order, into the 
cruellest of despotism and in a whirligig of inconsequence liberty 
itself has been destroyed. Yes: "these violent delights have 
violent ends.'* The times move fast and with tragic steps. 
Witliin one decade and within one land the world has had the 
transitions from autocracy to Bolsheyi^m. It has been seen how 
order and liberty are both needed by mankind; both must live, 
or each will fall to pieces. And the last of calamities will have 
come, because society will have forsaken justice, justice equal 
to all men and to every class, justice the reconciler. Burke's 
was a great saying : " Liberty to be enjoyed must be limited by 
law; for where law ends there tyranny b%ins; and the tyranny 
is the same be it the tyranny of a monarch or a multitude ; nay, 
the tyranny of the multitude may be the greater, since it is 
multiplied tyranny.'' 

As in the humbler sphere where the law knows neither rich 
nor poor, so among classes the law knows neither high nor low, 
supreme or struggling, influential or humble, and deals with all 
with an equal hand and an equal mind. Without that there can 

, be no democracy of free men, for that unnameable thing, cor- 
ruption, can cause society to rot. Give what name you like to 

• the colliding forces, call one organized labor and the other 
organized capital, law in the administration of justice knows 
neither the one nor the other. The humblest organized workers 
have equal rights themselves, not only against organized capital, 
but against the organizations of their own class. 



LOBD 8HAW. 937 

When claisses^ however^ axe divided against classes^ then too 
often a more serious trouble appears. It is not now the applica- 
tion of legal principles — ^those of justice : It is the abjuring of 
legal methods — ^those of reason. The awful collision has come — 
the collision between power and reason, between class despotism 
and tyranny on the one hand, and freedom and equality on the 
other. The cardinal principle is the appeal to justice — each of 
its class has its rights against the other^ each of its class has its 
duty to the other in asserting the rights and in performing the 
duties, each has its liberty of assertion but each in the perform- 
ance of its duty must be restrained by that order which ensures 
the liberty of all. It is indeed^ gentlemen of the American Bar 
Association, a tough nut. The appellants in the case are truly 
not one class against another, but society against both. Over 
all classes as over all individuals, the whole body politic must 
assert the law, a law for all alike, a defence and a security for 
human society itself. Against this even-handed justice no isms 
and shams can prevail, laborism, capitalism, bourgeoisie, plutoc- 
racy, proletariet, all these are the forms and shows, the red rags, 
the drums and trumpets; the substance of the issue is — shall 
freedom and order live together, shall right and duty respect 
each other ? And shall, lastly, the method of settlement and the 
solution of these eternal problems lie with the brutality of force, 
or with the ministry of substantial reason. With its whole 
power law supports the latter, and in this noble service to human- 
ity it dare scrap neither its principles nor its methods. In fair 
weather or in foul it will abjure the brutality of force; it will 
uplift the juster, humaner, diviner ministry of reason, and in 
this the law as with a crowning consecration demands the 
homage of the soul. 

That very fine thinker and eloquent man Sir James Mackin- 
tosh would, I feel sure, have agreed with this; and he expresses 
his ideas with a very stately diction. *' There is not,*' s^ys he, 
** in my opinion, in the whole compass of human affairs, so noble 
a spectacle as that which is displayed in the progress of juris- 
prudence; where we may contemplate the cautious and unwearied 
exertions of a succession of wise men through a long course of 
aged, withdrawing every case as it arises from the dangerous 
power of discretion, and subjecting it to inflexible rules — ex- 



238 THE WIDENING RANGE OF LAW. 

tending the dominion of justice and reason and gradually con- 
centrating, within the narrowest possible limits, the domain of 
brutal force and arbitrary will/' 

So far for the correlation of ideas — right and duty, order and 
freedom. They are regulative in the individual and the social 
relations; but they are appUcable in much more extended 
quarters than the bounds of one nation, they invade, they must 
invade the international sphere. So widening is, must be, the 
range of law. 

Let us proceed, however, to consider quite another and a very 
different topic, and so approach the higher region. Not corre- 
lations now but collisions. Not correlations of ideas but colli-> 
sions of method. Here is no blending, no co-ordination, no com- 
promise. It is war to the knife — ^war between the method of 
force on the one hand and the method of reason on the other. 
Reason and force since the world began have been in grips. 
When the former has prevailed the majesty of the law has been 
justified. When the latter has prevailed civilization has been 
wounded, the estimate of human life has been lowered, the 
achievements of mankind have been destroyed, and law itself 
has fallen from its high estate, dethroned, brutalized and then 
trampled imderfoot. 

In every range of law, from the humblest to the highest, this 
operates. When the superior in position, in influence, in num- 
bers, in adherents or in rank takes the law into his own hands, 
then the insistence of the domination of force over reason is 
promptly illustrated, and the private wrong calls aloud for legal 
redress. But the rejection of the domination of force, the taking 
of law into its own hand, applies not to individuals alone and on 
the higher range to classes of society, but it applies still higher; 
all nations, sooner or later, who in this collision between force 
and law prefer domination and power, come to a miserable end ; 
they that use the sword perish by the sword. Law reaches up to 
this higher level, and as the years go forward will do so with 
a greater and greater majesty of command; and justice, still 
the reconciler, will carry its principles with it into that highest 
range, adjuring force as a solvent of disputes, upholding the way 
of reason, and asking the aid of great lawyers as its ministers. 



LORD SHAW. 239 

So we come to realize that the dispeiiBiiig of justice is no 
despot's behest, but is part as I say of the ministry of reason in 
the affairs of men. Thus, as you ascend^ the view widens, and 
everyhere^ a/s I see it, the range of law is seen to ascend. But, 
ministers of reason, bestir yourselves. For tiie other side, the 
brutality of force has but the other day been vastly reinforced. 

A new fear it as the heart of mankind at this hour. It is 
connected with the advance of science. Never since the world 
began had force, brutality and anarchy such an opportunity. 
War, with all its sacrifice, has not been too dear if it open the 
eyes of mankind to the appalling gravity of continuing in the 
worship of force and of further defying the governance of reason. 
A new era opens to mankind. If you conceive of international 
law as binding all nations, then international law, I speak it 
with sorrow but conviction, international law is in ruins. Force 
under immoral or non-moral control can, we know, undo, and 
has undone, the humanest conventions of the ages. And a de- 
struction can now be accomplished in the course of minutes 
which will overthrow the achievements of mankind built up in 
the course of centuries. The earth is affrighted. 

Men, unless reason and the arbitrament of justice be reasserted 
on the earth, will hide beneath the ground on which the ruins of 
human happiness have been overthrown. Do you think this 
picture overdrawn ? Well, listen to this : 

Let me quote from that most distinguished soldier, Major- 

General Sir Frederick Maurice : 

Early in May, 1915, the Germans made their second gas attack at 
Ypres, employing a far ^eater volume of gas than in their first attack. 
I remember that early m the morning, when this second attack took 
place, I was riding just outside Haasebrouck when my horse suddenly 
refused to go a yard further, and soon after I felt my own eyes smarting. 
When I got back to my office I received a telegram with the news of 
the gas attack, and realized that I and my horse had felt the sas 21 
miles from the place where it had been discharged. If that gas had been 
really poisonous, thousands of women and children in Haasebrouck 
that day might have been killed. A fleet of aeroplanes could now carry 
for several hundred miles as much gas as the Germans discharged on that 
occasion, and if the gas were really poisonous, and the breeze carried it 
for a distance of 21 miles from the place where it was dropped, the 
destruction of the civil populaticm would indeed be wholesale. 

So it has come to this. The conflict as old as history, between 
right and wrong, the solutions as old as history, between material 
advancement eventually pursued and ideal progress legally 



\ 



240 THB WIDENING RANGE OF LAW. 

achieved^ yet still there remains acknowledged remedies as cruel 
as the darkest records of uncivilized humanity^ of the adjust- 
ment of human affairs by force instead of by law. All these 
things are before our mind now, but they have assumed a darker 
color. The glory of our estate is shrouded by fear. The weak- 
nesses of our remedies are pitiful to see. The cry of aggrieved 
mankind is unavailing forever unless a new method^ a new range 
of law be reached under which an orderly humanity shaU be 
free, regardful of right and of duty and submissive to justice 
after reasoned appeal. 

^'Pride^ pomp and circumstance of glorious wax'' have dis- 
appeared into a chemical cauldron. Chivalry and military glory^ 
there seems no room for them under the sim. They have fled and 
in their place is left only the diabolism of the laboratory. The 
powers of nature will undo us if they are in charge of the passions 
of men. The restraint of human ambition will be ineffectual 
unless humanity itself and its greatest nations rise in revolt 
against the tyranny of those methods which^ regardless of law, 
have triumphimtly cuWinated by striking h«mamty down. 

In this task of widening the range of law your great country 
has produced supremely great advocates. I sometimes think 
that the federal idea^ the idea which the genius of Hamilton 
and Washington combined to impress upon your people^ under 
which state rights could be guaranteed and the union kept 
secure, is on the eve of establishment on a world scale. All 
nations claim their state rights, all nations protest against a 
super-state, just as Hamilton's battles had to be fought against 
a similar idea of the union being regarded as a super-state. 

Far-sighted, able, philosophically minded men, have discerned 
the day in which we now live, and the light of humanity in which 
we now welter. To them it was justice, the verdict of reason and 
to appeal to law, which are the salvation of mankind, and that 
appeal was grounded upon essential and fundamental principles 
of right, distributed with equal hand against wrong, from the 
humblest to the highest spheres of human association and activ- 
ity. To the philosophers like Kant and Grotius have succeeded 
men of powerful practical insight, such as your own presidents. 
Twelve years ago President Boosevelt visited Christiania. He 
received there the Nobel prize, and delivered his lecture on in- 



LORD SHAW. S41 

temational peace, and the words he cited are the noble words of 
which every American and every humanitarian should be proud. 
They are these : 

There is at least as much need to curb the cruel greed and arrogance 
of part of the world of capital, to curb the cruel greed and violence of 
part of the world of labor as to check a cruel and unhealthy militarism 
in international relationships. I would like you to think over the wa^ 
that I have put that. I shall ever denounce wrong-doing because it is 
wrong, whether, done by the rich or by "the poor. 

We must ever bear in mind that the great end in view is righteous- 
ness, justice as between man and man, nation and nation, the chance to 
lead our lives on a somewhat higher level, with a broader spirit of 
brotherly good-will one for another. Peace is generally good in itself, 
but it is never the highest good unless it comes as ihe handmaid of 
righteousnesB; and it becomes a very evil thing if it serves merely 
as a made of cowardice and sloth, or as an instrument to further the 
ends of despotism or anarchy 

Now, having freely admitted the limitations to our work, and the 
qualifications to be borne in mind, I feel that I have the right to have 
my words taken seriously when I point out where, jn my judgment, great 
advances can be made m the cause of international peace. I speak as 
a practical man, and whatever I now advocate I actually tried to do 
when I was for the time being the head of a great nation and keenly 
jealous of its honor and interest. I ask other nations to do only what I 
should be glad to see my own nation do. 

Both upon its ideal and its practical sides this policy has 
been followed by your great presidents and men of affairs. 
Humanity in its noblest sense has never had better service than 
from your most thoughtful of men. I think of men still living. 
Not of your two great presidents alone^ Mr. Wilson and Mr. 
Harding^ but of your great president and Chief Justice Taft — 
that valiant and unwearied soul, and of another whose handwrit- 
ing I have gratefully detected in the humaner details of those 
fine pacts for the pacific and for the limitation of armaments — 
I call him the Orotius of America/ and his name is Elihu Boot. 

You see how I love the idea of justice as the reconciler of 
antitheses. Even political antitheses come under its sway: Be 
these great men Sepnblicans or Democrats, bless and honour 
them all ; they meet on the level of seeking and following after 
justice. And it is this which makes a law association, serene 
in the exercise of its function and proud in its ministry, no 
unfitting place for thoughts as wide as bringing the world under 
homage to peace. 

Humanity lies bleeding and stricken, and on many fair spaces 
of the earth alike the hand of war and the hand of the doctrinaire 
who knows not justice lie heavy like a curse. We think of the 



242 THE WIDENING RANGE OF LAW. 

tiiiion of the English speaking race, not for its own sake, but, 
at this crisis of the history of the world, for the serrice that 
lies to its hand — to staunch wounds, to redress wrongs, to 
remove oppressions, and, better than all these, to teach men a 
new and better way for body and for soul. In this communion 
of service let our comradeship be sanctified ; its foundations will 
be €UTe ; a comradeship of righteousness. 

We men of the Anglo-American race, we must be comrades all, 
'comrades forever. And I kiiow no plainer call to the comrade- 
ship of righteousness than a common loyalty to law, and to 
methods of its sure and equal appeal to reason. Our reward is 
before us. The inspired prophetic word still rin^s like a 
command — '^and the work of righteousness shall be peace, and 
the effect of righteousness quietness and assurance forever.** 

My appeal to you, gentlemen of the American Bar, is that the 
ancient grudge should go and go forever, and that the ancient 
comradeship should be renewed and repledged, renewed and 
repledged forever. 

By your forbearance, may I add this concluding word. Do not 
think, do not dream, that we on the other side are not aware of 
and not sympathetic with you in those constitutional difficulties 
with which you are confronted. We know the fulminations of 
Jefferson against alliances, we know the power of the written 
constitution, not only over your minds but most deservedly over 
your affections and your hearts. It will be highest task of your 
statesmanship to evolve out of the citizenship of America some- 
thing which honoring and conserving it, will yet give it a lofty 
place in the citizenship of the world. These things cannot be 
forced. To your statesmen and your great lawyers problems of 
constitutional complexity will arise, misunderstandings will have 
to be faced. It will be on a world scale with them as (^ an 
American scale it was with Washington and with Hamilton 
when, to their eternal honor, they unified America and answered 
the extreme state rights claim with the federal idea. But I have 
no fears for the result : Friendship claims it, the world awaits it. 
Hard and many the difficulties will be. But is it not so in life ? 
How often amidst the misrepresentations, the trials, the buffet- 
ings of fortune, or the desertion of friends, have we not recalled 
the words of WasWngtpft whjle |ie yrss in the sapje coil oi t?Q.uW« 



LORD SHAW. 



243 



as for some years to come will confront your public men. But 

we must go forward; we must follow the light: from this the 

attractions of popularity dare not deflect us. In the hazards of 

private life and professional it is as true as in those of great 

public issues, we remember Washington's pronouncement : 

If to please the people we offer what we ourselveB disapprove, how 
can we afterwards defend our work? Let us raise a standanl to which 
the wise and honest can repair. The event is in the hand of Go^. 



THE DIVISION OF GOVERNMENTAL POWERS IN 

PRANCE AND AMERICA. 

M. HENRY AUBEPIN, 

OV PABIB, FBANC8. 

I bring to the American Bar Association the greeting of their 
brethrea of the Bar of Paris. 

It is needless for me to state that we appreciate the honor you 
have done us in wishing to have a representative designated by 
French lawyers with you at your annual meeting. 

As for myself; I fully understand the importance of the mission 
that ha^ been entrusted to me and it will be the honor of my 
career to have been the messenger of my confreres on the other 
side of the ocean to my brethren of this free and glorious America, 
to which we are bound by so many memories and the irresistible 
emotions of our hearts. 

Both you and we, gentlemen, love liberty. We have suffered 
and have fought for it, and it was only necessary that it should 
be in peril to find ourselves reunited under its standards. You 
and we, and our friends the English, have saved liberty once 
more, and now that it is again safe from the blows directed against 
it, it is sweet and satisfying for a citizen of free France, who has 
devoted his life to the study and defense of justice, to come to this 
land of liberty and celebrate with such eminent jurists as you 
the worship of law which can exist only in the pure atmosphere 
of liberty. 

I should like, gentlemen, to discuss with you today a subject 
which in France is occupying our thoughts: It is iiie relation 
that exists between the Executive, the Legislative and the Judicial 
powers. There seems to be developing among us an evolution 
which has already been completed in your country. It may 
interest you to learn how this problem presents itself in my 
country, and I know you will not think me indiscreet if I ask you 
to let us profit by your experience and permit me to take back to 
Paris the enlightened opinions which I shall be able to obtain here. 

(244) 



IC. HHKBY AUBHPIN. 245 

Under the influence of fhe ideae of Montefiqnieu and of his 
'^ Spirit of Laws/' we adopted the dogma of the separation of 
powers in order to maintain an eqnilibritun between the three 
branches, the Ezeeutivey Legislatiye and Judicial, and to make the 
separation absolute we have enclosed each in its own sphere — ^al- 
most in what might be called its own compartment. But in human 
affairs it is rare that separations of this kind are definitive; it is 
rare that one of the branches does not give off other branches 
which extend to the neighbor, arresting its development until it 
is atrophied. But it is not always the same branch that prevails 
or succumbs. A branch will be strong and flourishing in one cli- 
mate and weak in another. It would seem that in America the 
Judicial has gained the supremacy over the other two branches, 
while in France it is the Legislati,ve that has become supreme. 
Your courts determine the constitutionality of laws, ours only 
apply them. 

Formerly our Parliament had a right of remonstrance against 
royal ordinances, and it is not necessary for me to recall to such 
a learned body as this, how useful, and at times necessary, this 
right was. But with the Bevolution and with the application of 
the principle of the separation of powers the rdle of each was 
strictly defined — the function of the Judiciary was to apply the 
decisions made by the Legislature. Montesquieu wrote : 

The closer the government approaches to a republic the more the 

dedaions of the courts are determiaed by fixed rules In a 

republican form of government it is of the essence of the Constitution 
that the judges follow the letter of the law 

And again : 

If the courts are not to be controlled by fixed rules, their decisions must 
be so, to the extent that they should never go beyond the text of the 
law itself. If th^ were the individual opinions of the judges, we ^ould 
be living in a world where we should not know what ^ligations we 
were contracting. 

The Constituent Assembly went further than merely to absorb 
Montesquieu^s ideas; it appropriated them and carried them out 
to their most extreme consequences. By the fundamental decree 
of August 16-24, 1790, which confirmed the separation of powers, 
it was the Assembly which enacted the laws and interpreted them. 
A little later there was created another body, the Trtbunal de 



246 GOVEBNMENTAL P0WBR8 IN FBANCB AND AMBRIOA. 

CiMsation, whode duty it was to supervise most rigorously the 
strict application of the law by the bodies charged with that duty. 
The mission of the Tribunal de Cassation was to anniQ every judg- 
ment which contravened in any way the text of the law. The 
whole system has been summarized by a learned author as follows : 

The courts must obey the law, and the law should suffice for them 
to do justice; if, for example, the judges openly disre^rd it, the Tri^ 
hunal de Cassation is there to annul their decision. If, m spite of rever- 
sal, the lower courts continue to resist, so that a second reversal is 
required, then a presumption arises that the law is obscure or insufficient 
on the point at issued The Tribunal de Cassation ^i^uld then demand 
an official and obligatory interpretation from the Legislature, which is 
the only body competent to settle judicial problems. 

Robespierre said : 

The expression " Jurisprudence des Tribunaux," in the sense in which 
it was used under the old r^ime has no further significance. It should 
be erased from our language. In a state which has a Constitution and 
a L^islature, "la jurisprudence des Tribunaux'' is nothing but the 
law itself. 

The Convention^ which succeeded the Constituent Assembly, 
went so far as to reverse the judgments of the Tribunal de Cassa- 
tion. The absolute supremacy of the legislative power was thus 
politically and philosophically confirmed. 

The authors of the Civil Code did not believe^ perhaps^ as 
strongly as their Revolutionary predecessors in the absolute virtue 
of the text of a law; they would, however, have been astonished 
if they had heard the statement made a century later by the first 
Magistrate of France, le Premier President of the Court of Cassa- 
tion, Mr. Ballot Beaupr6, on the occasion of the celebration of the 
Centenary of the Civil Code. 

When the text is clear and precise in form and does not allow of any 
doubt, the judge is bound to conform and obey ; if he does not, he fails 
in an elementary duty, and such abuses, should they become general, 
would produce veritable anarchy. But when the text presents some 
ambiguity, when doubts arise as to its meaning and extent, when, taken 
in connection with another text it can be to an extent contradicted or 
limited, or, on the other hand, extended, I am of opinion tliat in such 
a case the judge has the widest powers of interpretation. He should 
not obstinately try to discover the thought of the authors of the Code a 
hundred years ago in drafting such and such an article; he should ask 
himself what their thoughts would have been had they been drafting 
the same article today; he should say to himself that in view of all the 
changes which have occurred during the last century in the ideas, the 
habits, the institutions, the economio and social state of France, justice 
and reason require that the text be adapted liberally and humanely to 
the realities and the needs of modem Life. 



M. HBNTRY AUBBPIN. 247 

To adapt the text of the law to the exigencies of life — that is 
something tliat would make the legislators of the beginning of 
the last century rage in their graves ! 

And yet President Ballot Beaupr^ cites many cases where the 
judge, jSuding himself faced by conditions which the authors of 
the code had not provided for, either because they did not exist 
or because they were not foreseen, has made his decision by apply- 
ing in a broad and remarkably liberal spitit the provisions of 
the Code Napoleon. 

As a matter of fact, the judge is frequently forced to supple- 
ment the law. Portalis, himself, one of the authors of the Civil 
Code, said: "It is impossible for a legislator . to provide for 
everything. A code, no matter how complete it may seem, is no 
sooner drafted than a thousand unexpected questions present 
themselves to the magistrate; but in none of these cases do we 
see the judge rectify the law.** 

Now a new tendency is leading the judge to correct the work 
of the legislator. It is especially in our war legislation that this 
tendency is manifested. As a learned author remarks, our 
Supreme Court has shown in these circumstances a distinct 
tendency to treat the legislative texts with greater liberty than in 
the past. You, yourselves, I have been informed, have not 
escaped more than we, what we call in France the Housing Crisis. 
It exists everywhere with us, in the smallest villages as well as 
the most populous centers. Last year one of my friends, a lawyer, 
had a striking example of this. When we go to plead before a 
provincial court, it is customary to call on the president of the 
Tribunal at his own home. My friend, having inquired for the 
residence of the president, was informed that he would finr5 the 
magistrate in the Palais de Justice. My friend went there and 
found the judge in the room reserved for the deliberations of the 
judges. But what was his stupefaction when he saw in this room 
a bed! "Ah, yes,** said the president, observing his astonish- 
ment, "as there is no unoccupied apartment in town, this is 
where I live.** 

This abnormal state of affairs is the cause, unless it be the 
result, of the whole system of legislation. 

Charged with the duty of applying the law in regard to rents, 
and, above all,, with the necessity of enforcing the legal prolonga- 



248 GOVERNMENTAL POWEBS IN FRANOB AND AKBBICA. 

tion of leases^ the courts give an interpretation to the law which 
appears to the legislators so contrary to the thought which in- 
spired it that three times they have passed statutes in order to 
induce the judges to serve their will. 

But^ gentlemen^ we have seen even more ! We have seen the 
judge no longer obliged to yield to the repeated orders of the 
legislative power; we have seen the legislative power bend to the 
decisions of the judges. 

War legislation furnishes us with still another example. Be- 
side the heroes^ all wars have produced speculators who have taken 
advantage of the enormous needs of the moment to raise the 
prices of necessities in a scandalous manner and make rapid for- 
tunes. The last war^ with us^ produced, beside a harvest of brave 
and pure young men, an abominable crop of tares, the most 
shameful of human beings, the profiteers. 

It was necessary for the legislature to intervene and take steps 
to circumvent the shameful movement. Therefore, in 1916, a 
law was passed in regard to illicit speculation extending the pro- 
visions of the Penal Code to those who cornered the necessities of 
life and to combinations of speculators. This statute inter- 
fered with the free play of the law of demand and supply, 
and this in turn would have upset all markets. The courts, it 
must be admitted, interpreted the law in such a manner as to 
avoid doing this: Instead of attacking the artificial rise of 
prices, they attacked the making of an excessive profit, and in 
order to define an excessive profit, they arrogated to themselves 
the right to fix the maximum profit. We lawyers protested with 
the utmost energy and at every possible opportunity against an 
application of the law which was contrary to the law itself, and 
the question was brought before Parliament. The author of the 
law himself protested, declaring that the courts were not applying 
the law, but were interpreting it in a manner entirely contrary to 
the ideas of its f ramers. The courts insisted upon their interpre- 
tation and this is what happened: Parliament adhered to the 
doctrine of the courts. Not only did it no longer protest against 
the decisions, it agreed so completely with them as to announce 
its intention to extend the law beyond the period when it was to 



M. HBNBY AUBBPIK. M9 

have terminated. Tbere^ gentlemen^ is that not a fine example 
of the progress of the judicial power P 

This is not the only example I could cite. A whole new school 
is coming into being which gi^es the judiciary power over the 
legislature. In support of their position they refer to you^ gentle- 
men^ and to your country. 

Laws have been passed at times which were manifestly con- 
trary to our fundamental law and even to the charter of our 
country — the Declaration of the Bights of Man and of the Citi- 
zen. Many of our jurisconsults would wish to do away with the 
possibility of such attacks and seek to give the judges the right 
to judge the law, and quite naturally hope to introduce into our 
judicial system the right of the courts to pass on the constitu- 
tionality of laws. 

Are they wrong, or are they right? You, gentlemen, are in 
the best position to answer this question. 

What is the best way to defend the Bight ? The defense of the 
Right, as I have said before, is equally dear to us both. You have, 
indeed, proved it. Eight years ago the Bight was outrageously 
violated. Treaties were violated, international law was violated, 
and the laws of war were violated. And while we dung to the 
soil of our country with the endurance and tenacity which are 
the dominant qualities of the children of France, the winds of 
ocean carried to you the echo of all the outrages which the Bight 
was suffering. * 

Then, in defense of the Bight, you arose ; and you, who from 
the first hours of our trial had given us the help of your generous 
charity brought us the support of your armed forces. ^* Might 
is greater than Bight,'' said Bismarck. You, my friends, put 
Might in the camp of Bight and that brought the victory. 

A Frenchman coming to America would be an ingrate if he did 
not call up the memories of all you did for France. Here among 
lawyers he may well call up those memories, for what you did for 
France you did for the Bight. 



POSSIBLE AND NEEDED BEPORMS IN THE 

ADMINISTRATION OP JUSTICE IN 

THE FEDERAL COURTS. 

BT 

WILLIAM HOWARD TAFT, 

CHIEF JUSTIGB OP THE UNITED STATES. 

I hope you feel in a proper state of mind this mornings in view 
of the roof under which you are gathered. I don't know any 
reason why the distinction was made by which Lord Shaw of Dun- 
fermline should speak in a place where athletic contests had there- 
tofore been had> and I should be assigned to this sacred structure. 
It was doubtless because they knew that Lord Shaw could be 
trusted anywhere. I am sorry that we have not had the benefit 
of this fine church auditorium for all the sessions. I feel in 
speaking here as if I were enjoying an undue privilege, — as if it 
were denying to others the equal protection of the law, not to 
give them the same opportunity. However, I shall need your 
prayers and all your self-restraint to keep your attention to 
what I have to present to you this morning, because it is going 
to be dry to the point of satisfying the Anti-Saloon League. 

For many years, the disposition of business in the federal courts 
of first instance was prompt and satisfactory. This was because 
the business there was limited, and the force of judges sufficient 
to dispose of it ; but of recent years the business has grown be- 
cause of the tendency of Congress toward wider legislative 
regulation of matters plainly within the federal power which it 
had not been thought wise theretofore, to subject to federal con- 
trol. More than that, the general business of the coxmtry, and 
the consequent litigation growing out of it has increased, so that 
even in fields always occupied by the federal courts, the judicial 
force has proved inadequate. In this situation, the war came on, 
statutes were multiplied, aad gave a special stimulus to federal 
business. Since the war, there has been a great increase of 
crimes of all kinds throughout the country. This within the 
federal jurisdiction has included depredations on interstate com- 
merce, and schemes to defraud in which are used facilities fur- 
nished by the general government. 

(260) 



WILtJAM MOWAtO) *t^ATT. 251 

Then under the inspiration of the war^ traffic in intozicatLog 
liquors was forbidden^ and under the same inspiration the 18th 
Amendment was passed and the Volstead Law was put upon the 
statute book. Prosecutions under this law alone have added to 
the business in the federal courts certainly 10 per cent; while 
cases growing out of the income and other war taxation^ out of 
war contracts and claims against the government^ have made 
discouraging arrears in many congested centers. The criminal 
business has usually been first attacked^ and the effort to dispose 
of it has in soi»e jurisdictions nearly stopped the work on the 
civil side. 

The Attorney-General, properly as it seems to me, conceived 
that the first step to take was the creation of new judgeships. 
A bill was introduced in both Houses for the addition of 18 
district judges to the judicial force, two for each circuit, who 
were not to be assigned to any district, but were to be subject to 
call to any district in the circuit in which they were appointed, 
to assist the existing district judges. In addition, these judges 
and the existing district judges were made subject to assignment 
from one circuit to another where the business required it. The 
suggestion of a flying squadron of judges, however, did not meet 
with approval in the House of Representatives, and the Judiciary 
Committee of that body preferred to add local district judges 
for the districts where the congestion was most apparent. 

Accordingly a bill was put through which made new judges in 
21 districts. The bill when it reached the Senate was modified 
somewhat. It went to conference, and a bill which provides for 
24 new district judges and one circuit judge in the Fourth Cir- 
cuit has been reported to both Houses. It is opposed, and will 
doubtless lead to discussion; but in view of the previous votes in 
the two Houses, it seems likely that the bill will pass before the 
close of this Congress. 

The bill contains a very important provision, which it seems to 
me will make for expedition and efficiency. While the districts 
which receive new judges are those in which additions to the 
judicial force are most needed, there are arrears in other dis- 
tricts and the delays and defeats of justice are not confined to 
the normal jurisdiction of the 24 new judges. The new bill 
atithorizes a judicial council of lOgudges, consisting of the Chief 



252 BSFORMS IN THB ABJCINISTBATION OF JUSTIOB. 

ft 

Justice and the senior associate judge of each circuit, which is to 
meet in Washington the last Monday in September, to consider 
reports from each district judge with a description of the char- 
acter of the arrears, and a recommendatipn as to the extra judicial 
force needed in his district. The conference thus called is to 
consider at large plans for the ensuing year by which the district 
judges available for assignment may be best used, l^he senior 
circuit judge of each circuit is given authority to assign any 
district judge of one district to any other in his circuit, while 
the Chief Justice is given authority to assign any district judge 
in one circuit to a district in any other circuit, upon request of 
the senior circuit judge of the circuit to which the district judge 
is to be assigned, and the consent of the senior circuit judge 
of the circuit from which he is to be taken. 

These provisions allow team work. They throw upon the coun- 
cil of judges the responsibility of making the judicial force do a 
work which is distributed unevenly throughout the entire country. 
It etids the absurd condition, which has heretofore prevailed, 
under which each district judge has had to paddle his own canoe 
and has done as much business as he thought proper. Thus one 
judge has broken himself down in attempting to get through an 
impossible docket, and another has let the arrears grow, in a calm 
philosophical contemplation of them ba an inevitable necessity 
that need not cause him to lie awai^e nights. It may take some 
time to get this new machinery into working operation, but I feel 
confident that the change will vindicate itself. The application of 
the same executive principle to the disposition of legal business 
in the municipal courts of certain cities, and in the courts of some 
states, has worked well. Although the whole United States is a 
more difficult field in which to apply it, there would seem to be no 
reason why its more ambitious application should not prove 
useful. 

A good many objections, I may state informally, have been 
made to this feature of the bill. It is thought that it gives 
too much power to the council of judges, and especially to the 
Chief Justice. Gentlemen have suggested that I would send dry 
judges to wet territory and wet judges to dry territory, oblivious 
of the fact that the Chief Justice has not the means of assigning 
them to any particular work in any district to which he may assign 



WILMAM HOWARD TAPT. 253 

tbem^ and that assigmnent to cases must necessarily be made by 
the local district judge who is in charge^ and oblivious of the fact 
also that it is only by the consent of the two circuit judges that 
he can act. It nevertheless did serve to call out in the discussion 
references to JeftrejSy and other notorious judges in the history 
of our profession, which did not seem to be altogether compli- 
mentary to those to whom the references were applied. 

Second^ I come to the appellate business in the federal system. 
In the old days when business was light in all the federal 
courts, the appeals and writs of error that were taken to the 
Supreme Court were not sufficiently numerous to occupy the full 
time of the Supreme Court and the justices were able to do a 
large amount of circuit work. Indeed, under the statute, until 
recent years, a circuit justice was required to visit each district 
in the circuit to which he was assigned, once in two years. As 
the appellate business grew, however, this rule became more 
honored in the breach tiian in the observance, and it has now 
been properly repealed. Its existence, however, showed that there 
was a time when its obligation was not unreasonable. 

It has had one effect^ good or otherwise, as you may be affected 
by it, that it justified the adjournment of the Supreme Court 
early in the spring, in order that the Justices might do their 
circuit work. And if they didn't have any circuit work, the 
logical result was that it en^^rged their summer vacation. Now 
we have been gradually creeping up on that vacation, so that 
ultimately it may come within reasonable limits. 

In 1891 a new intermediate court was created — ^ihe Circuit 
Court of Appeals, one to each circuit, and the circuit judges were 
ultimately increased so as to give three or more circuit judges 
for each court of appeals, except that of the fourth circuit where 
there are only two. The new bill proposes to give that circuit an 
additional judge. In the Act of 1891 appeals were allowed from 
the courts of first instance to the circuit court of appeals, and, 
speaking generally, the judgments of the new court in cases de- 
pending on diverse citizenship, patent cases, admiralty cases and 
criminal cases, were made final. This radical change became neces- 
sary because of the arrears in the Supreme Court, which put 
the court three years behind the disposition of its cases. The 
new syjstem worked a great reform, and the court was able 



254 REFORMS IN THE ADMINISTRATION OF JUSTICE. 

to catch up and keep up with its business until within recent 
years. Now there is an interval of 15 months between the filing 
of a case in the court and its hearing. To be exact, I had the 
clerk give me the time taken between the filing of the transcript 
and the hearing of the last ten cases on the regular docket heard 
in the Supreme Court, and the average interval was 14 months 
and 16 days. This is due not alone to the number of cases filed, 
but also to the fact that with the increasing number of cases in 
which emergent public interest demands that a speedy disposition 
be had, many cases are taken out of their order and are advanced. 
Much of the time of the court is consumed in the hearing of such 
cases and the regular docket is delayed. 

The members of the Supreme Court have become so anxious 
to avoid another congestion like that of the decade before 1891, 
that they have deemed it proper themselves to prepare a new bill 
amending the jurisdiction of the Supreme Court and to urge its 
passage. A committee was appointed some two years ago, and 
this year they gave great attention to it. The committee was 
composed of Mr. Justice Day, Mr. Justice McKeynolds, and 
Mr. Justice Vandeventer, while the Chief Justice was an ex- 
oflScio member. The bill is now pending in both houses of 
Congress*. The Act of 1891 introduced into the appellate- sys- 
tem a discretionary jurisdiction of the Supreme Court over 
certain classes of appeals. It proceeded on the theory that so 
far as the litigants were concerned, their rights were sufficiently 
protected by having one trial in a court of first instance, and one 
appeal to a court of appeal, and that an appeal to the Supreme 
Court of the United States should only be allowed in cases whose 
consideration would be in the public interest. Accordingly under 
existing law, appeals in diverse citizenship cases, in patent cases, 
in bankruptcy cases, in admiralty cases, and in criminal cases, 
can now reach the Supreme Court for review only when that 
court shall, after consideration of the briefs and record, deem 
it in the public interest to grant the writ of certiorari. By 
the Act of 1916, this discretionary power of the court was ex- 
tended and its obligatory jurisdiction reduced, as to review of the 
state court judgments, so that now the only questions which 
can come by writ of error from a state court to the Supreme 
Court as a matter of right, are those in which the validity of 



WILLIAM HOWABD TAFT. 255 

a state statate or authority or of a federal statute or authority 
under the Constitution has been the subject of consideration 
by the state courts and has been sustained in the former^ or 
denied in the latter case. All constitutional questions arising 
in the federal courts, in the district courts or the Circuit Court 
of Appeals^ subject to review at all, may under existing law be 
brought to the Supreme Court as of right. Thus there is a 
distinction between writs of review from the state courts and 
review of the subordinate ffederal courts. 

The new bill increases the discretionary appellate jurisdiction 
now vested in the Supreme Court so that no ^e of any kind can 
be taken from the Circuit Court of Appeals to the Supreme 
Court of the United States without application for a certiorari. 
Obligatory appeals from all other courts subordinate to the 
Supreme Court of the United States, except from the federal 
district courts in a limited class of cases and from the state courts, 
are also abolished and only review by certiorari is provided. This 
includes the Court of Appeals of the District of Columbia and the 
Court of Claims, as well as the territorial courts. Direct appeals 
from the district courts to the Supreme Court in jurisdictional 
and constitutional questions are abolished and such questions 
are to reach the Suprteie Court only through the Circuit Court 
of Appeals. These changes it is thought will give the Supreme 
Couri; such control over the business ^as that it can catch up 
with its docket. 

The objection urged to the bill is that it gives the Supreme 
Court too wide discretionary power in respect to granting appeals, 
and that a thorough examination of the cases on the applications 
for certiorari is impossible. 

The bill has been recommended by the members of the court 
only after a very full consideration of the subject. They are 
convinced that it is the best and safest method of avoiding arrears 
on their docket. It does not need an extended and close argument 
upon the merits of a question to enable the court to decide whether 
it is important enough in a public sense to justify its considera- 
tion. It is not necessary upon such an application for the court 
to decide the issues which were considered below. That is noi 
what the certiorari should turn on. The court can quickly ac- 
quire knowledge of the nature of the questions in the case from 

9 



256 BSFOEHS IN THB ADICINISTRATION OF JUSTIOB. 

the briefs filed. To allow an oral argument on such applications 
would be largely to defeat the object of the new bill. ETery brief 
presented is carefully examined by each member of the court and 
every case is discussed and voted on. I want to emphasize 
that, because I am a witness. 

The class of cases most pressed upon the court for the writ of 
certiorari is not that of the cases that involve serious constitu- 
tional questions or questions of public importance. The motive 
of the litigants generally is merely to get another chance to have 
questions of importance to them, but not of importance to the 
public, passed upon by another court. 

The present discretionary power of the Supreme Court in allow- 
ing appeals in certain cases coming from state supreme courts and 
involving federal constitutional questions is very little enlarged 
by the new bill. The change in the\iew bill on this point was 
made rather to clarify the meaning of the existing law than to 
enlarge the court's discretion, and if objected to may well be 
stricken out. The general power of certiorari in such constitu- 
tional questions was conferred in the Act of 1916, and has been 
exercised ever since. It was granted because Congress found that 
counsel were often astute in framing pleadings in state courts to 
create an unsubstantial issue of federal constitutional law and so 
obtain an unwarranted writ of error to the Supreme Court. It 
was, therefore, thought wise not to permit a writ of error as of 
right in any cases except in those in which the plaintiff in error 
could show that a state court had held a state statute valid which 
was said to be in violation of the federal Constitution, or a • 
federal statute invalid for the same reason ; and to require in all 
other cases of alleged violation of federal constitutional limita- 
tion that the Supreme Court should be given a preliminary oppor- 
tunity on summary hearing to say whether the claim made pre- 
sented a real question of doubtful constitutional law^ or was, on 
its face, unworthy of serious consideration in view of settled 
principles. It was thought that a court very familiar with such 
questions by constant application of them, could in a summary 
hearing separate wheat from the chaff and promptiy end litiga- 
tion, the continuance of which must do great injustice to the suc- 
cessful party below, and, what is more important, clog the docket 
and delay the hearing of meritorious causes. 



WILLIAM HOWARD TAJT. 25? 

As already said, the new. bill extends the certiorwri jurisdiction 
of the Supreme Court to constitutional questions which are de- 
cided by the federal circuit courts of appeal. There really isn't 
any reason why a distinction should be made between the state 
supreme courts in this regard and the Circuit Court of Appeals. 
If in two federal courts whose reason for being is to protect the 
rights of individuals against local prejudice in state courts, or 
against infraction of their federal constitutional rights, a com- 
plainant is defeated, surely it is not conferring undue power upon 
the Supreme Court, whose members are engaged daily and for 
years in the consideration of such questions and their final adjudi- 
cation, to provide a preliminary investigation into their serious- 
ness and importance before burdening that court and its docket 
with a lengthy and formal hearing. The public and other liti- 
gants have rights in respect of frivolous and unnecessary consump- 
tion of the time of the Supreme Court which the use of the writ of. 
certiorari seems to be the only practical method of preserving. 
Too many appeals impose an unfair burden on the poor liti- 
gant. Gentlemen, speed and despatch in business are essential to 
do justice. 

. Various methods have been adopted to limit appeals to courts 
of last resort. One is by imposing heavy costs. But that puts 
the privilege within the reach of the longer purse. Again 
classification by subject matter has been attempted, but this 
has not prevented clogging the docket with cases presenting no 
question of general interest or diflBculty. In Calif ornia, in Ohio, 
in Illinois and in other states, the legislature has extended to the 
state supreme court a discretion after preliminary and summary 
examination, to grant or deny appeals. 

The failure of the Supreme Court to lay down definite rules 
for determining the cases in which certioraris should be granted 
has called for adverse conmient. This is unjust. Certain general 
rules have been laid down. The writ is used to secure uniformity 
of decision in subordinate courts of appeal and to decide questions 
of general public importance which are not well settled. It is said 
that this is vague. But the very postulate upon which the discre- 
tion is granted is that definite rules for determining the appeal- 
able cases have not proved satisfactory, and that it is better to let 



268 RBFOEMS IN THE ADMINISTRATION. OF JUSTICB. 

the Supreme Court distinguish between questions of real public 
importance and those whose decision is only important to the 
litigants. 

The members of the court have recommended the new bill to 
Congress because they believe it to be the most effective way of 
speeding the disposition of causes before it and therefore speeding 
justice. The gain which the arrears have made upon the court 
during this last year down to July 29 is represented by 70 
cases^ or 20 per cent of the whole number in arrear^ and while the 
court will make an effort to reduce the arrears the prospect is, 
in view of the great additions to business in the subordinate 
courts, that the court will fall further and further behind. 

I may speak of a secondary reason why this bill should pass. 
The statutes defining the jurisdiction of the Supreme Court and 
of the circuit courts of appeal are not as clear as they should be. 
It is necessary to consult a number of them in order to find exactly 
what the law is, and I regret to say that without clarification by 
a revision, the law as to the jurisdiction of the Supreme Court, 
and of the Circuit Court of Appeals, is more or less a trap, in 
which counsel are sometimes caught. This bill removes all tech- 
nical penalties for mistaken appellate remedies. 

Of course amendments could be made which would easily cut 
down the work of the Supreme Court, if Congress wishes to adopt 
a different function for the federal courts than they now have. 
If it chooses to abolish the inferior federal courts or to take 
away their jurisdiction in diverse citizenship cases and in cases 
involving a federal question, as has been suggested by some, it 
would relieve business congestion in them and in the Supreme 
Court. The theory is advanced that a citizen of one state now 
encounters no prejudice in the trial of cases in the state cotirts 
of another state, and that the constitutional ground for the 
diverse citizenship of federal courts has ceased to operate. If 
the time has come to cut down the subject matter of federal 
judicial jurisdiction, it simplifies much the question of the bur- 
den of work in the federal courts, but that has not been the ten- 
dency of late years. I venture to think that there may be a 
strong dissent from the view that danger of local prejudice in 
state courts against non-residents is at an end. Litigants from 
the eastern part of the country who are expected to invest their 



WILUAM HOWABD TAFT. 259 

capital in the West or Souths will hardly concede the propoaitiou 
that their interests as creditors will be as snre of impartial judicial 
consideration in a western or southern state court as in a federal 
court. The material question is not so much whether the justioe 
administered is actually impartial and fair^ as it is wbettier it 
is thought to be so by those who are considering the wisdom of 
iavesting their capital in states where that capital is needed for 
the promotion of enterprises and industrial and comznercial 
progress. No single element — and I want to emphasize this be- 
cause 1 donH think it is always thought of — ^no single element in 
our governmental system has done so much to secure capital for 
the legitimate development of enterprises throughout the West 
and South as the existence of federal courts there, jrith a juris- 
diction to hear diverse citizenship cases. But of course the 
taking away of fundamental jurisdiction from the federal courts 
is within the power of Congress, and it is not for me to disouss 
such a legislative policy. My suggestions are intended to meet 
the situation as it is, and to secure some method by which 
civil litigation under existing law may be promptly and justly 
dispatched. The trial of criminal cases in the federal courts is 
not within the scope of this paper. 

A perfectly possible and important improvement in the prac- 
tice in the federal courts ought to have been made long ago. 
It is the abolition of two separate courts, one of equity and one 
of law, in the consideration of civil cases. It has been preserved 
in the federal court, doubtless out of respect for the phrase '^ cases 
in law and equity " used in the description of the judicial power 
granted to the federal government in the C!onstitution of the 
United States. Many state courts years ago abolished the dis- 
tinction and properly brought all litigation in their courts into 
one form of civil action. No right of a litigant to a trial by 
jury on any issue upon which he was entitled to the nghi of 
trial by jury at common law need be abolished by the diange. 
This is shown by the every-day practice in any state court that 
hais a code of civil procedure. The same thing is true with 
reference to the many forms of equitable relief which were intro- 
duced by the chancellor to avoid the inelasticity, the rigidity, 
inadequacy and injustice of common law rules and remedies. The 
intervention of a proceeding in equity to stay prooeedings at com- 



260 BBFOBMS IN THS ADMINISTRATION OF JUSTIOB. 

mon law and transfer the issues of a case to a hearing before the 
chancellor was effective to prevent a jury trial at common hm long 
before our Constitution, and would not be any more so under a 
procedu]^e in which the two systems of courts were abolished. 
Already under the federal code, there is a statutory provision 
which has not yet been much considered by the courts, by which 
an equitable defense may be pleaded to a suit at law. Jf we 
may go so far, it is a little difficult to see why the distinction 
between the two courts may not be wholly abolished, and the 
constitutional right of trial by jury retained unaffected. 

If the separation of equity and law for the purpose of admini- 
stration is to be abolished in the federal system, and they are to 
be worked out together in the same tribunal, then a new procedure 
must be adopted. Who shall frame it? Shall Congress do it or 
merely authorize it to be done by rules of court ? Congress from 
the beginning of the government has committed to the Supreme 
Court the duty and power to make the rules in equity, the rules 
in admiralty, and the rules in bankruptcy. Moreover, this Ameri- 
can Bar Association has for some years been pressing upon Con- 
gress the delegation of power to the Supreme Court to regulate by 
rule the procedure in suits at law. There would seem to be no 
reason why, where the more difficult work of uniting legal and 
equitable remedies in one procedure is to be done, the Supreme 
Court, or at least a committee of federal judges, should not be 
authorized and directed to do it. Of course the present statutes 
governing a separate administration of law and equity must be 
amended or revised by Congress, and certain general requirements 
be declared, but the main task of reconciling the two forms of 
procedure can be best effected by rules of court. 

The same problem arose in the courts of England and has 
been most successfully solved. By the Judicature Act of 1873, 
Parliament vested in one tribunal, the Supreme Court of Judi- 
. cature, the adininistration of law and equity in every cause coming 
before it. This court was made up of the Court of Appeal and 
of the High Coutt of Justice. By subsequent acts, the divisions 
of the High Court were reduced to three: (1) The King's 
Bench, (2) Equity, and (3) Probate, Divorce and Admiralty, 
as they now are. They are all merely parts of the same High 
Courts but for convenience the suits are brought in those di- 



WILUAM HOWARD TAFT. 2l6I 

visions respectively corresponding to the remedies sought. .If 
it happens that what would have been equitable relief is sought 
in the King's Bench^ it may be granted there^ but it is more 
likely to be assigned to the Equity Division^ and vice versa. 
Judges familiar with the equity practice are appointed to the 
Equity Division^ and those familiar with the law side of the 
practice are sent to the King's Bench. Then there has grown 
up a separate branch of the High Court in which only coin- 
mercial cases are heard, and to that court judges familiar with the 
law merchant and commercial contracts and customs are assigned 
and the cases are heard and decided with remarkable dispatch* 
They are, perhaps, agreed cases, but they are submitted and dis- 
posed of, most important cases, within 40 days. There is the 
same division of the practice among the barristers under the in- 
fluence of the older separation of law and equity administration: 
The courts of the High Court are, however, now all one court, 
with full power to give any kind of relief the nature of the case 
requires. Parliament gave to a committee of the judges and 
representatives of the barristers and solicitors, power to recom-' 
mend rules of practice for this new system. The present pro- 
cedure is the result of rules adopted in 1883, amended from time 
to time by the same authority, as the experience with the existing 
rules showed the necessity. The rules and amendments are 
reported to Parliament for its rejection or amendment, but 
until that is forthcoming, they control the procedure. 

It was my good fortune during three weeks of this summer 
to be able to attend the hearings of all the various branches oi 
the courts of England. I have heard it questioned whether, in 
view of the report that was given in this country as to my activi- 
ties in London that were not exactly judicial or professional, 
it was possible for me to absorb any knowledge with reference 
to the practice in the English courts. I think Lord Shaw has* 
lent a little support to that view by certain remarks that I have 
heard him make. I am not disposed to say that in an ordinary 
case suc]^ evidence would not be convincing. But to m^i who 
have attended ihe meetings of the American Bar Assdciation, and 
know what a single individual of digestive experience can do in 
the matter of functions for a week, a great deal will seem possible 
in three weeks. 



262 BSFORMS IN THB ADMINI8TRATI0K OF JUSTIOB. 

I may stop to say that I am deeply grateful f^r the reception 
which was given me as Chief Justice by the Bench and the Bar of 
England^ and for the truly brotherly spirit which they manifested. 
Of course, one cannot separate himself from the personal in such 
a manifestation. He knows it is not really personal^ but represen- 
tative, but he thanks God that he happens to be the personal 
representative to receive it. They opened their arms. Every- 
thing that they could do they did. It showed to me what I have 
always thought to be the case, that one of the strongest bonds 
between this country and Britain is the bond between professional 
men of the law and the judges who have to do with the admini- 
stration of justice in both countries. 

In connection with this general subject, the treasurer of the 
Association, Mr. Wadhams has asked me to read a letter, which 
I am sure you will be glad to hear. 

The Royal Courts of Justice, London, July 21/1922. 

At the suggestion of Viscount Cave, who enjoyed the privilege of 
the hospitality of the American Bar Association the year before last, 
and with the approval of the Lord Chancellor, I am writing to you, 
tentatively, to ascertain whether I might send you a formal mvitation 
to the American Bar AjBociation to hold their annual meeting in 1924 
in London. It will be a great honor and pleasure to the Bar of En- 
gland if this could be arranged. 

There are a number of matters, such as the time, the places of meeting, 
and facilities which would have to be considered, as well bb minor 
details, but if you were to let me know that the invitation would be 
acceptable to the American Bar Association, it would be a pleasure to 
me to send you a formal invitation upon hearing from you. 

Perhaps at the same time you would let me know the number who 
would be likely to come and the time during which the meeting would 
last. These matters, however, I leave for further consideration, and 
ask yoii to let me know as a preliminary whether my suggestion is one 
that the American Bar Association would entertain. 

1 feel sure that there are many of the Bench and Bar here who would 
be glad to join in oflfering a welcome to your Association, and who 
hope, as I do, that the plan may be found possible. 

Yours very truly, 

Ebnbst M. Pollock. 

Sir Ernest Pollock is the Attorney-General of England. 

With respect to that suggestion, I may say that I was in 
attendance at the s»-called Grand Night, at Gray's Inn, in London. 
The Lord Chancellor was there ; so also were the President of the 
Probate, Divorce, and Admiralty Division, Sir Henry Duke, Mr. 
Justice Darling, Sir John Simon, and a number of others. The 
question of such a visit was discussed. They were all strongly in 



WILLIAM %OWABD TAPT. 263 

fayor of it. And I can assure you that if the Association deems it 
wise to accept this for th^ year 1924^ those who go will never 
regret it or forget it. The Lord Chancellor^ Viscount Birkenhead, 
I have been pressing to come to this country and attend the meet^ 
ing of the American Bar Association next year. I am not sure 
how his engagements will be, but that he will be glad to come, if 
he can come, I know. Certainly the American Bar Association 
would be delighted to receive him, not only as the highest judicial 
officer of Great Britain, but as a man of the greatest ability and 
the greatest charm, and a man that you would be pleased to take 
into your bosom as a fellow judge and fellow member of the Bar. 

Now, having proved to you that I gave sufficient attention to the 
practice in the Royal Courts, I am going to give you my oon- 
elusions. I had looked into the description of the prooeduie 
which at present obtains in those courts as described in a Tery 
useful book prepared by Mr. Samuel Bosenbaum, of the Phila- 
delphia Bar, entitled, ^'The Bule Making Authority in tbe 
English Supreme Court,'' and I was permitted to be present 
and note the practical operation of the rules. The history of 
their adoption is set out in great detail by Mr. Bosenbaum, and 
I shall not detain you with an attempt at even a r6ramA of 
the growth of the system and the remarkable character of the 
reform which was effected through the rules in the administration 
of English justice. Nor am I competent to do so with accuracy 
of detail. I can only essay a most general description. 

If one will read the contrast between the dreadful inadequacy 
of English courts and the administration of English justice in 
1837, when Victoria ascended the throne, and their efficiency and 
admirable work in 1887, when ehe celebrated her golden jubilee, 
as described by Lord Bowen, one of the great English judges, in 
his jubilee essay on the Administration of Law, he may well take 
courage as to what may be done with our system in the way of 
bettering it. Describing the result of the change of procedure by 
rules of court, Lord Bowen used these words : 

A complete body of rules— which poasert the great merit of elasticity, 
and which (subject to the veto of Parliament) is altered from time to 
time by the judges to meet defects as they appear — governs the pro- 
cedure of the Supreme Court and all its branches. In every cause, 
whatever its character, every possible relief can be given with or with- 
out pleadings, with or without a formal trial, with or without discovery 
of documents and interrogatories, as the nature of the case prescribes— 
upon oral evidence or affidavits, as is moat convenient. Every amend- 



.264 BEFORMS IN THE ADMIKATEATXON OF JUSTIOB. 

ment cftn be made at all times and all stages in any record, pleading or 
proceeding, that is requisite for the purpose of deciding the real matter 
m controversy. It may be asserted withotit fear of contradiction that it 
is not possible in the year 1887 for an honest litigant in Her Majesty's 
Supreme Court to be defeated by any mere technicality, any slip, any 
mistaken step in his litig[ation. The expenses of the law are stiU too 
heavy, uid have not diminished pcai passu with other abuses. But law 
has ceased to be a scientific game that may be won or lost by playing 
some particular move. 

The justness of this summary is thus upheld by that great 

jurist, Mr. Dicey : 

Any critic who dispassionately weighs these sentences, notes their 
full meaning, and remembers that they are even more true in 1005 
than in 1887, will partially imderstand the immensity of the achievement 
performed by Bentham and his school in the amendment of procedure — 
that is, in giving reality to the legal rights of individuals. 

The means by which this reform was accomplished and the 

av6wed object of the fiamers of the rules was to effect ^' a change 

in piocediire which would enable the court at an early stage of 

the litigation^ to obtain control over the suit and exercise a close 

supervision over the proceedings in the action.'^ Thus could 

dilatory Jsteps be eliminated, imnecessary discovery prevented, 

needed discovery promptly had, and the decks quickly clearecl for 

' the real nub of the case to be tried. It was first proposed to dis- 

' card pleadings, but this was abandoned. Suit is begun by service 
df a writ of aummbns. Shortly after the appeariance ot the defen- 
dant, a siinimonis for directions is issued to him, at the instance 
of the plaintiff, requiring him to appear before a master or 
judge to settle the fiitiire proceedings in the cause. In the King's 
Bench this work is done by masters. In equity and commercial 
cases, it is usually done by the judge to whom the case is assigned. 

' The master or judge make9 ah order as to the manner in which the 
cdse shallbe carried on and tried. In cases in which the original 
writ' is endorsed with notice that the claim is for a fixed sum as 
lipoh a contract, a sale of goods, a note or otherwise, and the 

' plaintiff files an affidavit that there is ho defence, the master may 
Andet Rule XIV, require the defendant to file an affidavit showing 
that he has a good defence and specifying it before he may file 
answer. If he files no such affidavit, summary judgment goes 
against him. In other cases, the master or judge makes an order, 
fixing time for pleadings and kind of trial, and no step is there- 
after taken without application to the master or judge, so that the 
latter supervises all discovery sought, decides what is proper, and 



WIUJAH HOWABO TAJfT. 265 

leqnires the partiee " to lay their cards face up npoxl the table " 
and the real issue of fact and law is promptly made ready for the 
trial. 

I eat with Sir Willes Ghitty, the learned and most effective 
Head Jtfaster of the Sing's Bench, and saw the solicitors and some- 
times the barristers, come before him to shape up the issues^ the 
pleadings and the directions for trial. He knocked the beads. ctf 
the parties together so that a clear issue between them was quickly 
reached. 

Demurrers are abolished. An objection in point of law may 
be made either before, at or after the trial of the facts. Particu- 
lars in pleading may be had by a mere letter of inquiry from 
the solicitor of one party to the other, and any refusal is at 
once submitted to the master or judge. Should either party 
object to the orders of a master, the question can be at OBoe 
referred to the judge who is to try the cause and passed on. 
The pleadings are very simple. They are a statement of claim 
and an answer. Great freedom is allowed as to joinder of 
actions and parties and in respect of setoffs and counteiydaims. 
The pleadings are prepared on printed forms for use according 
to the rules, with details written into the paragraphs. The 
nature of the daim is stated in a yery brief way. A blaidc 
paragraph is left in the form for particulars as to the main fiacts 
and for references to documents relied on. The main facts and 
the documents upon which each side relies to establish its case or 
defence are thus brought' out before trial, and all in a very short 
time. Admissions of important facts are elicited by each sid^ 
from the other to save formal proof and its expense, on peiialty 
of costs for refusal if the fact proves to be uncontested. 

The effect of the administration of justice under these rules 
can be shown in some degree byjreference to the judicial statistics 
of England and Wales for 1919 in the disposition of cases in the 
High Court of Justice, King's Bench Division. The summonses 
issued in the King's Bench Division in a year amounted to 
43,140. In 14,244 cases, judgments were entered for the plaintiff. 
In 386 cases, judgments were entered for the defendant. In 
526 cases other judgments were entered than either for the 
plaintiff or the defendant, making a totsl of 15,136 judgments- 
entered in the suits brought. This would laave undisposed of 



266 REFORMS IN THE ADMINI8TRATI0K OF JUSTIOB. 

about 28^000 writs of summons issued. This sum represents the 
suits brought which were abandoned or which resulted in satis- 

. faction of the claim without further proceeding beyond the issu- 
ing of the summons. Of the judgments rendered^ over 9000 
were entered in default of appearance of the defendant; 756 by 
default other than in default of appearance. 3684 judgments 
were entered as summary judgments under Order 14^ because 
the defendant would not make the necessary affidavit to justify 
his securing leave to answer. One hundred and forty-one judg- 
ments were rendered after trial with a jury« Eight hundred 
and thirty-six judgments were rendered after trial without a 
jury. Thirty-five were rendered on the report of the official 
referee. Of the judgments for defendants^ 55 were rendered after 
trial with a jury, and 309 after trial without a jury. This shows 
how thoroughly the preliminary steps to the preparing of the issue 
winnow out the cases and dispose of them without further clog- 
ging of the docket. 

' The speed with which this system disposes of the business was 
testified to by the New York State Laws Delays Commission 20 
years ago. It reported to the Governor of that State in 1903 that 
23 judges of the High Court of Judicature in England actually 
tried twice the number of cases in a year that 41 judges in New 
York City tried in the same time, and that the difference was due 

i to the operation of summons for directions and the summons for 
summary judgment. The report was approved by the Association 
of the Bar of the City of New York, J'udge Dillon then being 
Chairman of the Judiciary Committee of that body. Tt was 
sought to introduce this reform for New York City by act of the 
legislature providing for 16 masters, but it is said to have been 
beaten by the influence of those who did not wish to abolish the 
referee patronage in the New York courts. 

The English system is adapted to the conditions prevailing in 
that country and has been built up on the traditions of the Bench 
and Bar, which do not have the same force here. Moreover it is 
much more applicable to the disposition of the litigation of a 
great city like New York, Chicago or Philadelphia, as the New 
York Commission found it to be, than to our federal courts of 
first instance. In the first place, the territorial jurisdiction in 
England is a compact one, embracing only England and Wales, 



WILIiIAH HOWABD TAPT. 267 

• 

in w]ych there are nearly 500 county courts, disposing, under 
the simplest procedure, of much of the business involving less than 
£100 in law cases and £500 in equity cases. The branches of the 
High Court of Judicature to which these rules of procedure apply 
are centered in London, the judges live there, and while the assizes 
are held at various towns in England and in Wales, access to 
London is easy, and the natural result is that the important cases 
are generally either brought in London or ultimately reach there 
for their disposition. The division of the prof essioif into barris- 
ters and solicitors, and the small number of the active members of 
the Bar, as compared with our own, make it easy to form an at- 
mosphere of accommodation on the part of counsel toward the 
court and toward one another, which could hardly exist in the 
administration of justice in a federal court covering all or half a 
state, and involving litigation in which the counsel who appear are 
engaged in that court in only a small part of their practice. The 
English barristers only know their clients through the briefs of 
Die cases which are handed them to enable them to conduct the 
cause in court. They present the case in an impersonal way. 
Their fees are fixed in advance and are not contingent. These 
circumstances render much less common efforts at delay and the 
use of legal procedure to prevent the prompt rendition of justice. 
More than this, the system of costs in the English courts, in which 
the defeated party is made to pay the expenses of the other side, 
including solicitors' and reasonable barristers* compensation, re- 
strains counsel by the fear of penalties always imposed for use- 
less proceedings. 

The costs in English courts would seem to be too heavy. Lord 
Bowen speaks of that as a needed reform. I am sure that we 
never could be induced to adopt the division of the profession into 
barristers and solicitors, or the English system of costs. 

But these differences should not prevent our using a great deal 
of what has proved effective in the English practice to simplify 
procedure and speed justice in our federal courts. The English 
precedent certainly demonstrates the advantage of having the 
procedure by rules of court, framed by those meet familiar with 
the actual practice and its operation and most acute to eliminate 
its abuses and defects. 



268 BSFOEKS IN THB ADMINISTRATION OF JUSTIOB. 

What I would suggest is that Congress provide for a. com- 
mission^ to be appointed by the President, of two Supreme Court 
justices, two circuit judges, two district judges, and three lawyers 
of prominence and capacity to prepare and recommend to Congress 
amendments to the present statutes of practice and the judicial 
code, authorizing a unit administration of law and equity in one 
form of civil action. The act should provide for a permanent 
commission similarly created, with power to prepare a system of 
rules of procedure for adoption by the Supreme Court. Power to 
amend from time to time should also be given. The rules and their 
amendments, after approval by the court, should be submitted to 
Congress for its action, but should become effective in six months, 
if Congress takes no action. In this way the procedure would be 
framed by those most familiar with it and by those whose duty it 
is to enforce it The advantage of experiment in the laboratory 
of the courts would furnish valuable suggestions for bettering 
the system. The important feature of such a system is that needed 
action by the commission and the court will be promptly t&ken 
and the necessary delay in a Congress crowded with business 
may be avoided. 

The reforms that I have been advocating involve some increase 
in the power of the judges of the courts, either in the matter of 
the assignment of judges, in the matter of the enlargement of the 
certiorari power, or in the adoption of more comprehensive rulee 
of procedure. I am well aware that they will be opposed solely 
on this ground, and that the objection is likely to win support 
because of this. It is said that judges are prone to amplify their 
powers — that this is human nature, and therefore the conclusion 
is that their powers ought not to be amplified, however much good 
this may accompUsh in the end. The answer to this is that if the 
power is abused, it is completely within the discretion — ^indeed 
within the duty — of the legislature to take it away or modify it. 

Dependence upon action of Congress to effect reform to remove 
delays and to bring about speed in the administration of justice 
has not brought the best results, and some different mode should 
be tried. The failures of justice in this country, especially in 
the state courts, have been more largely due to the withholding 
of power from judges over proceedings before them than to any 
other cause ; and yet judges have to bear the brunt of the criticism 



WILLIAli HOWABD TAFT. 269 

which is so general as to the results of present court action. The 
judges should be given the power commensurate with their re- 
sponsibility. Their capacity to reform matters should be tried 
to see whether better results may not be attained. Federal judges 
doubtless have their faults^ but they are not chiefly responsible 
for the present defects in the administration of justice in the 
federal courts. Let Congress give them an opportunity to show 
what can be done by vesting in them sufiScient discretion for the 
purpose. 



THE LIMITATIONS OP LAW. 

ST 

CALVIN COOLIDGE, 

VICB-PRESIDBNT OF THB UNITED 8TATB8. 

The growing multiplicity of laws has often been obseryed. The 
National and State Legislatures pass acts^ and their courts de- 
liver opinions, which each year run into scores of thousands. A 
part of this is due to the increasing complexity of an advancing 
civilization. As new forces come into existence new relationships 
are created, new rights and obligations arise, which reouire estab- 
lishment and definition by legislation and decision. Tnese are all 
the natural and inevitable consequences of the growth of ^reat 
cities, the development of steam and electricity^ the use of the 
corporation as the leading factor in the transaction of business, 
and the attendant regulation and control of the powers created 
by these new and mighty agencies. 

This has imposed a legal burden against which men of affairs 
have been wont to complain. But it is a burden which does not 
differ in its nature from, the public requirement for security, 
sanitation, education, the maintenance of highways, or the other 
activities of government necessary to support present standards. 
It is all a part of the inescapable burden of existence. It follows 
the stream of events. It does not attempt to precede it. As 
human experience is broadened, it broadens with it. It represents 
a growth altogether natural. To resist it is to resist progress. 

But there is another part of the great accumulating body of our 
laws, that has been rapidly increasing of late, which is the result 
of other motives. Broadly speaking it is the attempt to raise the 
moral standard of society by legishtion. 

The spirit of reform is altogether encouraging. The organized 
effort and insistent desire for an equitable distribution of the 
rewards of industry, for a wider justice, for a more consistent 
righteousness in human affairs, is one of the most stimulating and 
hopeful signs of the present era. There ought to be a militant 
public demand for progress in this direction. The society which 
is satisfied is lost. But in the accomplishment of these ends 
there needs to be a better understanding of the province of 
legislative and judicial action. There is danger of disappoint- 
ment and disaster unless there be a wider comprehension of the 
limitations of the law. 

The attempt to regulate, control and prescribe all manner of 
conduct and social relations is very old. It was always the practice 
of primitive peoples. Such governments assumed jurisdiction 

(270) 



OALVIN COOLIDGB. 271 

over the action, property^ life, and even religions convictions of 
their citizens down to the minutest detail. A large part of the 
history of free institutions is the history of the people struggling 
to emancipate themselves from all of this bondage. 

I do not mean by this that there has been, or can be, any prog- 
ress in an attempt of the people to exist without a strong and 
vigorous government. That is the only foundation and the only 
support of all civilization. But progress has been made by the 
people relieving themselves of the imwarranted and unnecessary 
impositions of government. There exists, and must always exist, 
the righteous authority of the state. That is the sole source of the 
liberty of the individual, but it does not mean an inquisitive and 
officious intermeddling by attempted government action in all 
the affairs of the people. There is no justification for public 
interference with purely private concerns. 

Those who foimded and established the American Government 
had a very clear understanding of this principle. They had 
suffered many painful experiences from too much public super- 
vision of their private affairs. The people of that period were 
very jealous of all authority. It was only the statesmanship and 
resourcefulness of Hamilton, aided by the great influence of t^^ 
wisdom and character of Washington, and the sound reasoning 
of the very limited circle of their associates, that succeeded in 
proposing and adopting the American Constitution. It estab- 
lished a vital government of broad powers but within distinct and 
prescribed limitations. Under the policy of implied powers 
adopted by the Federal Party, its authority tended to enlarge. 
But under the administration of Jefferson, who, by word though 
not so much by deed, questioned and resented almost all &e 
powers of government, its authority tended to diminish and, but 
for the great judicial decisions of John Marshall, might have 
become very uncertain. But while there is ground for criticism 
in the belittling attitude of Jefferson towards established govern- 
ment, there is even larger ground for approval of his policy of 
preserving to the people the largest possible jurisdiction and * 
authority. After all, ours is an experiment in self-government 
by the people themselves, and self-government cannot be reposed 
wholly in some distant capital, it has to be exercised in part by 
the people in their own homes. 

So intent were the founding fathers on establishing a con- 
stitution which was confined to the fundamental principles of 
government that they did not turn aside even to deal with the 
great moral <][uestion of slavery. That they comprehended it 
and regarded it as an evil was clearly demonstrated by Lincoln 
in his Cooper Union speech when he showed that substantially 
all of them had at some time, by public action, made clear their 
opposition to the continuation of this great wrong. The early 



272 THB LIMITATIONS OF LAW. 

amendments were all in diminution ol the power of the g07emi- 
ment and declaratory of an enlarged sovereignty of the people. 

It was thus that our institutions stood for the better part of a 
century. There were the centralizing tendencies and the amend- 
ments arising out of the War of ^61. But while they increased to 
some degree the power of the national govemmenty they were in 
chief great charters of liberty^ confirming rights already enjojred 
by the majority, and undertaJ^ing to extend and guarantee like 
rights, to those formerly deprived of equal protection of the laws. 
During most of this long period the trend of public opinion and 
of l^islation ran in the same direction. This was exemplified in 
the executive and legislative refusal to renew the United States 
bank charter before the war, and in the judicial decision in the 
slaughterhouse cases after the war. This decision has been both 
criticised and condemned in equally high places, but the result 
of it was perfectly clear. It was on the side of leavinff to the 
people of the several states, and to their legislatures and courts, 
jurisdiction over the privileges and immunities of themselves and 
their own citizens. 

During the past 30 years the trend has been in the opposite 
direction. Urged on by the force of public opinion, national 
legislation has been very broadly extended for the purpose of 
promoting the general welfare. New powers have been delegated 
to the Congress by constitutional amendments and former grants 
have been so interpreted as to extend legislation into new fields. 
This has run its course from the Interstate Commerce Act of the 
late eighties, through the various regulatory acts under the com- 
merce and tax clauses, down to the maternity aid law which 
recently went into effect. Much of this has been accompanied by 
the establishment of various commissions and boards, often clothed 
with much delegated power, and by providiag those already in 
existence with new and additional authority. The national gov- 
ernment has extended the scope of its legislation to include many 
kinds of regulation, the determination of traffic rates, hours of 
labor, wages, sumptuary laws, and into the domain of oversight of 
the public morals. 

This has not been accomplished without what is virtually a 
change in the form, and actually a change in the process, of our 
government. The power of legislation has been to a large extent 
recast, for the old order looked on these increased activities with 
much concern. This has proceeded on the theory that it would 
be for the public benefit to have government, to a greater degree, 
thfe direct action of the people. The outcome of this docSrine 
Has been the adoption of the direct primary, the direct election 
of United States Senators, the curtailment of the power of the 
Speaker of the House, and a constant agitation for breaking down 
the authority of decisions of the courts. This is not the govern- 



OALVIK COOIJDGE4 S73 

meat which was pat into fonn by Washington and Hamilton and 
popularized by Jefferson. Some of the stabilizing safeguards 
which they had provided have been weakened. The representa- 
tive element has been diminished and the democratic element has 
been increased^ but it is still constitutional government^ it still 
requires time, due deliberation, and the consent of the states to 
change or modify the fundamental law of the nation. 

Advancing along this same line of centralization, of more and 
more legislation, of more and more power on the part of the 
national government, there have been proposals from time to time 
which would make this field almost unlimited. The authority 
to make laws is conferred by the very first article and section of 
the Constitution, but it is not general, it is limited* It is not 
'^ all legislative powers/^ but it is ^' all legislative powers herein 
granted shall be vested in a Congress of the United States.^' The 
purpose of that limitation was in part to prevent encroachment 
on the authority of the states, but more especially to safeguard 
and protect the liberties of tiie people. The men of that day pro- 
posed to be the custodians of their own freedom. In the tyran- 
nical acts of the British Parliament they had seen enough of a 
legislative body claiming to be clothed with unlimited powers. 

For the purpose of protecting the people in all their rights so 
dearly bought and so solemnly declared, the Third Article estab- 
lished one Supreme Court and vested it with judicial power over 
all cases arising under the Constitution. It is that court which 
has stood as the guardian and protector of our form of govemr 
ment, the guarantee of the perpetuity of the Constitution, and 
above all the great champion of the freedom and the liberty of 
the people. No other known tribunal has ever been devised in 
whicn the people could put their faith and confidence, to which 
they could entrust their choicest treasure, with a like assurance 
that there it would be secure and safe. There is no power, no 
influence, great enough to sway its judgments. There is no 
petitioner humble enough to be denied the full protection of its 
great authority. This court is human, and, therefore, not infal- 
lible, but in the more than one hundred and thirty years of its 
existence its decisions which have not withstood the questioning 
of criticism could almost be counted upon one hand. In it the 

«eople have the warrant of stability, of progress, and of humanity. 
T'herever there is a final authority it must be vested in mortal 
men. There has not been discovered a more worthy lodging place 
for such authority than the Supreme Court of the United States. 
Such is the legislative and judicial power that the people have 
established in their government. Becognizing the latent forces 
of the Constitution, which in accordance with the spirit of the 
times have been drawn on for the purpose of promoting the public 
welfare, it has been very seldom that the cOTirt has been compelled 



274 THE LIKITATI0K8 OP LAW. 

to find that any humanitarian. legislation was beyond the power 
which the people had granted to the Congress. When such a 
decision has been made, as in the recent case of the Child Labor 
Jjaw, it does not mean that the court or nation wants child labor, 
but it simply means that the Congress has gone outside of the 
limitations prescribed for it by the people in their Constitution 
and attempted to legislate on a subject which the several states, 
and the people themselyes, have chosen to keep under their own 
control. 

Should the people desire to have the Congress pass laws relat- 
ing to that over which they have not yet granted to it any juris- 
diction, the way is open and plain to proceed in the same method 
that was taken in relation to income taxes, direct election of 
Senators, equal sufiFrage, or prohibition, by an amendment to the 
Constitution. 

One of the proposals for enlarging the present field of legisla- 
tion has been to give the Congress authority to make valid a pro- 
posed law which the Supreme Court had declared wm outside 
the authority granted by the people, by the simple device of re- 
enacting it. Such a provision would make the Congress finally 
supreme. In the last resort its powers practically would b6 un- 
limited. This would be to do away with the great main principle 
of our written Constitution, which regards the people as sovereign, 
and the government as their agent, and would tend to make the 
legislative body sovereign and the people its subjects. It would, 
to an extent, substitute for the will of the people, definitelv and 
permanently expressed in their written Constitution, the chanff- 
ing and uncertain will of the Congress. That would radically 
alter our form of government and take from it its chief guarantee 
of freedom. 

This enlarging magnitude of legislation, these continual pro- 
posals for changes under which law might become very excessive, 
whether they result from the praiseworthy motive of promoting 
general reform or whether they reflect the raising of the general 
standard of human relationship, require a new attitude on the 
part of the people towards their government. Our country has 
adopted this course. The choice has been made. It could not 
withdraw now if it would. But it makes it necessary to guard 
against the dangers which arise from this new position. It makes 
it necessary to keep in mind the limitation of what can be 
accomplished by law. It makes it necessary to adopt a new 
vigilance. It is not sufficient to secure legislation of this nature 
and leave it to go alone. It cannot execute itself. Oftentimes 
it will not be competently administered without the assistance of 
vigorous support. There must nqt be permitted any substitution 
of private will for public authority. There is required a renewed 
and enlarged determination to 3^c^^^ the observance and enforce^ 
ment of the law. 



CALVIN OOOLI0GS. 276 

So long as the national government confined itself to providing 
those fundamentals of liberty, order and justice for which it was 
primarily established, its course was reasonably clear and plain. 
No large amount of revenue was required. No great swarms of 
public employees were necessary. There was little clash of special 
interests or different sections, and what there was of this nature 
consisted not of petty details but of broad principles. There was 
time for the consideration of great questions of policy. There was 
an opportunity for mature deliberation. What the government 
undertook to do it could perform with a fair degree of accuracy 
and precision. 

But this has all been changed by embarking on a policy of a 
general exercise of police powers, by the public control of much 
private enterprise and private conduct, and of furnishing a 
public supply for much private need. Here are these enormons 
obligations which the people found they themselves were imper^ 
f ectly discharging. They therefore undertook to lay their burdens 
on the national government. Under this weignt the former 
accuracy of administration breaks down. The government has 
not at its disposal a supply of ability, honesty and character, neces- 
sary for the solution of all these problems, or an executive capacity 
great enough for their perfect administration. Nor is it in the 
possession of a wisdom which enables it to take great enterprises 
and manage them with no ground for criticism. We cannot rid 
ourselves of the human element in our affairs by an act of 
legislation which places them under the jurisdiction of a public 
commission. 

The same limit of the law is manifest in the exercise of the 
police authority. There can be no perfect control of personal 
conduct by national legislation. Its attempt must be accompanied 
with the full expectation of very many failures. The problem of 
preventing vice and crime, and of restraining personal and organ- 
ized selfishness is as- old as human experience. We shall not find 
for it an immediate and complete solution in an amendment to 
the federal Constitution, an act of Congress, or in the findings of 
a new board or commission. There is no magic in government, 
not possessed by the public at large, by which these things can be 
done. The people cannot divest themselves of their really great 
burdens by undertaking to provide that they shall hereaiter be 
borne by the government. 

When provision is made for far-reaching action by public 
authority, whether it be in the nature of an expenditure of a. 
large sum from the treasury, or thf participation in a great moral 
reform, it all means the imposing of large. additional obligations 
upon ti)0 people. In the last resort it is the people who must 
respond, The^ are the n^lji^ry powf F; they are the financial 



\ 



276 THE LXKITATI0N8 OF LAW. 

power, they are the moral power of the govemment There is 
and can be no other. When a broad rule of action is laid down by 
law it iB tiiey who mnst perform. 

If this condnfiion be sound it becomes necessarr to avoid the 
danger of asking of the people more than they can ao. The times 
are not without evidence of a deep-seated discontent not confined 
to any one locality or walk of Uf e, but shared in generally by those 
who contribute by the toil of their hand and brain to the carrying 
on of American enterprise. This is not the muttering of agi- 
tators, it is the conviction of the intelligence, industry and char- 
acter of the nation. There is a state of alarm, however un- 
warranted, on the part of many people lest they be unable to main- 
tain themselves in their present positions. There is an apparent 
fear of loss of wages, loss of pronts and loss of place. There is a 
discernible physical and nervous exhaustion which leaves tiie 
country with little elasticity to adjust itself to the strain of events. 

As the standard of civilization rises there is necessity for a 
larger and larger outlay to maintain the cost of existence. As the 
activities of government increase, as it extends its field of opera- 
tions, the initial tax which it requires becomes manifolded many 
times when it is finally paid by the ultimate consumer. When 
there is added to this aggravated financial condition an increasing 
amount of regulation and police control,, the burden of it all 
becomes very great. 

Behind very many of these enlarging activities lies the un- 
tenable theory that there is some shortncut to perfection. It is 
conceived that there can be a horizontal elevation of the standards 
of the nation, immediate and perceptible, b^ the simple device of 
new laws. This has never been the case m human experience. 
Progress is slow and the result of a long and arduous process of 
self-discipline. It is not conferred upon the people, it comes, 
from the people. In a republic the law reflects rather than makes 
the standard of conduct and the state of public opinion. Beal. 
reform does not begin with a law, it ends with a law. The attempt 
to dragoon the body when the need is to convince the soul will 
end only in revolt. 

Under the attempt to perform the impossible there sets in a 
general disintegration. When legislation fails those who look 
upon it as a sovereign remedy simply cry out for more legislation. 
A sound and wise statesmanship which recognizes and attempts 
to abide by its limitations will undoubtedly find itself displaced 
by that type of public official who promises much, talks much, 
Wislates much, expends much, but accomplishes little. The 
ddiberate, sound judgment of the country is likely to find it 
has been superseded by a popular whim. The independence of 
th^ l^slator is broken down. The enforcement of the law bQ- 



OALYIN COOUDOS. 277 

comes uncertain. The courts fail in their function of speedy 
and accurate justice^ their judgments are questioned and their 
independence is threatened. The law, changed and changeable on 
slight provocation/ loses its sanctity and authority. A continua- 
tion of this condition opens the road to chaos. 

These dan^rs must be recognized. These limits must be ob- 
served. Having embarked the government upon the enterprise of 
reform and reflation it must be realized that unaided and alone 
it can accomplish very little. It is only one element, and that not 
the most powerful, in the promotion of progress. When it goes 
into this broad field it can furnish to the people only what the 
people furnish to it. Its measure of success is limited by the 
measure of their service. 

This is very far from being a conclusion of discouragement. 
It ia very far from being a conclusion that what legislation can- 
not do for the people they cannot do for themselves. The limit 
of what can be done by the law is soon reached, but the limit 
of what can be done by an aroused and vigorous citizenship has 
never been exhausted. In undertaking to bear these burdens and 
solve these problems the government needs the continuing indul- 
gence, cooperation and support of the people. When the public 
understands that there must be an increased and increasing effort, 
such effort will be forthcoming. They fire not ignorant of the 
personal equation in the administration of their affairs. When 
trouble arises in any quarter they do not inquire what sort of a 
law they have there, but they inquire what sort of a governor and 
sheriff they have there. They will not long fail to observe, that 
what kind of government they have depends upon what kind of 
citizens they have. 

It is time to supplement the appeal to law, which is limited, 
with an appeal to tiie spirit of the people, which is unlimited. 
Some unsettlements disturb, but they are temporary. Some 
factious elements eziat, but they are smalL No assessment of 
the material conditions of Americans can warrant anything but 
the highest courage and the deepest faith. No reliance upon 
the national character has ever been betrayed. No survey which 
goes below the surface can fail to discover a solid and substantial 
foundation for satisfaction. But our countrymen must remem- 
ber that they have and can have no dependence save themselves. 
Our institutions are their institutions. Our government is their 
government. Our laws are their laws. It is lor them to enforce, 
support and obey. If in this they fail, there are none who can 
succeed. The sanctity of duly constituted tribunals must be 
"maintained. Undivided allegiance to public authority must be 
'required.' With a citizenship which voluntarily establishes and 
defends {hese, the cause of America is secure. Without that all 
else is of little avail. 



PBELIMINARY EDUCATION FOR LAWYBBS. 

BY 

NICHOLAS MURRAY BUTLER, 

OF NEW TOBK. 

Into this notable gathering of jurists and juris-consulta and 
practitioners of the law, I may only presume to come as the 
spokesman of the inconspicuous and often humble client. In 
these days of the economic interpretation of history, the client 
may perhaps be said to be the economic basis upon which courts 
and judicial systems and the practice of the law rest. I am, 
therefore, in accord with the spirit of the times in speaking for 
a few moments from the view-point of the layman. 

Lord Melbourne, who won the high distinction of lifting com- 
mon sense to the plane of philosophy, once said : '^ It is tire- 
some to educate; it is tiresome to be educated; it is tiresome 
to discuss education.'' And, without venturing to contradict 
so eminent an authority, I shall endeavor to combat the neces- 
sary tedium of this discussion with the soul of wit, which is 
brevity. 

All civilized peoples throw protection about their public serv- 
ices, and all civilized peoples fix increasingly severe standards 
of admission to permanent public service. I presume that, in 
an earlier and an older day, any calling or any profession or any 
practice, save that, perhaps, of the priesthood, was open to 
anyone whose spirit might turn him in that particular direction. 
But one calling and one profession after another has been 
singled out as needing organization, protection, and studious 
and careful preparation. Long ago the three learned professions 
were developed. Their number has now been increased by 
that of the engineer, by that of the architect, by that of the 
teacher, and it is now being added to by that of the journalist, 
by that of the pharmacist, and various others — the members of 
other organized professions. 

The three learned professions became such because it was 
apparent that their practice was not a matter of mere haphazard, 
not a matter of mere empirical examination of a new and definite 

(278) 



NICHOLAS MURRAY BUTLBR. 279 

« 

body of f acts^ bnt that their practice rested upon a body of tested 
and organized knowledge which had become a part of human 
experience, and was on its way to be developed into a science. 
When our organized hnman knowledge gets to the point that 
we are enabled to predict with reasonable accuracy, we have the 
elements of a scientific comprehension of a given field of hnman 
interest 

I think there are few more interesting things in the history 
of the intellectual life of men than the development of the 
medieval universities out of the necessities and out of the as- 
pirations of human society. As members of this Association 
doubtless well know, the great University of Bologna, the pioneer 
of them all, was originally solely a school of law. Men joilmeyel 
there, and women, too, over hundreds of miles oif mountains 
and plains and rivers, in order to hear Imerius discuss the princi- 
ples of the Boman Law. The fires that were lighted at Bologna 
have been burning with increasing brilliance ever since. And 
today, the study of the law is one of the most highly organized, 
one of the most precise, and one of the best ordered of all our 
intdlectual endeavors. 

But in a democratic society, there are naturally those who 
raise their voices against so high and so precise a standard for a 
training as will shut out, — and I use the name because I hare 
heard it so frequently in these discussions — ^Abrah^m Lincoln. 
My reflection upon that is that as we produce Abraham Lin*- 
coins, we shall doubtless be able to deal with them without public 
damage. 

We have now come to the point, however, where this organized 
study of the law as law is not all that is necessary and adequate 
for the care and the guidance of the litigation of those great, 
manifold, human interests and activities that constitute modem 
society and the modem state. The economic basis upon which 
our social order rests has undergone grave and far-reaching 
changes since the common law took its form, and since the civil 
law was thrown into code. The layman sees in a legal settle- 
ment, a judicial decision, by the highest court of his land, 
an adjustment of facts. The lawyer sees an application of 
principles. Those principles are perhaps hidden from the lay- 
man. He is concerned with the facts^ with what seems to him, 



280 PBELIMIKABT EDUOATION FOB LAWYEB6. 

from his point of view> a selfiflh (me perhaps, to be fair and right 
and just and orderly. If he finds that a decision is arrived at on 
strict and sound legal and judicial principles, which offends his 
senae of right, he, often through lack of comprehension of the 
legal argument, goes in revolt, not against that particular opinion, 
but against the whole system which gives rise to judicial decisions. 
That, to the best of my knowledge is, as briefly as I can put it, 
the state of mind of the man who is restive as to the application 
of the law to hifi particular set of interests or contentions. 

In my judgment, at that point is to be found the basis for the 
argument that the student of the law must, in these days, have a 
care that he possesses a thorough comprehension of economics, 
and all those principles of organized society which history and 
the social sciences exhibit in their evolution and their applica- 
tion. Curiously enough, it is exceedingly difficult today to get 
for the great mass of our stadent bodies any sound and thor- 
ough comprehension of the fundamental principles of economics. 
That was possible thirty years ago, perhaps less. But that great 
braneh of knowledge hsB now become so divided into separafce 
fields, — ^the money problem, the labor problem, the transportation 
problem, the public utility problem — ^that economists nowadays 
are very apt to be specialists and unable or unwilling to give to 
the youth of high school or college age that clear, simple expo- 
sition of the fundamental principles of economics which is neces- 
sary to an linderstanding of the life we live, and which has 
become an essential part of the equipment of the modem mem* 
ber of the Bar who would be apprized of the great body of facts 
by which we are surrounded, the feelings, the emotions, the 
ambitions, that are moving masses of men. 

We speak of waste, physical waste, financial waste. I some- 
times wonder whether there is any waste in the world compsi- 
aUe with our intellectual waste; whethe^ there is anything to 
compare with the amount of tmgamered, tmintei^reted, un- 
known knowledge, tiiat goes daily over the dam of human life and 
human experience. 

Let me give one illustration. We are living at a time when 
there is a very strong and almost world-wide revival of faith in 
some form of communism — ^both communism as to social rela- 
tions and communism as to the possession of property. If the 



NICHOLAS KUBRAT BUTLBB. 1^81 

modern oommuniflt weie asked to read Plato's ^' Bepublie/' and 
find out abont it all, he woxQd be surprised. If he were asked 
to read Governor Bradford's '^ History/' and to find what hap- 
pened at Plymouth among a people as intelligent and as high 
minded and as united in sjniit as were ever together, he would 
probably wonder why we asked him to *give his time to ancient 
history. But the fact is, that human experience has tried all 
these things. Human endeavor has traveled on all of these roads. 
If we would avoid unceasing and exhausting intellectual and 
social waste, it behooves us that our leaders of opinion, those 
who are so instrumental in formulating our law, those who 
guide us through their interpretation and make their decisioils, 
those who occupy a leading place in the development and forma- 
tion of puUic opinion, should know, not merely guess at, but 
know, what has been done in the world in the way of social and 
economic experimentation. 

Therefore I would have the preliminary education of the 
lawyer lay the greatest possible stress upon the fimdamentals of 
economics and upon the history of social organization, social 
endeavor, social success, and social failure. The material is at 
hand and abundant. 

Next, it goes without saying, does it not, that in order to 
comprehend, even dimly, the principles of law and the methods 
of critical thinking and ratiocination — ^that there must be a 
foundation, an adequate disciplined maturity — a dtisciplined 
maturity and not merely maturity? Men may grow up aiid 
grow old without discipline and vidthout wisdom. They will be 
assisted if, during this period of maturing, there is an order^ 
discipline wisely directed toward a definite and specific end. 

The schools of medicine and the schools of engineering have 
now got to the point they say explicitly what they wish the 
incoming student to have. You may not be graduated from even 
the best of American colleges with your Bachelor's D^ree and 
walk into a school of medicine. The very first thing that tbey 
ask you is, whether, in getting that d^ree, you gained a suffi- 
cient knowledge of the sciences fundamental to medicine, chem- 
istry, physics, physiology, so as to enable you to come and 
profit by your four years of medical instruction. The student 
of the best schools of engineering must have, not merely a degree, 



282 PRBLIMINARY EDUCATION FOR LAWYBRS. 

not merely so many years spent in college study^ but it is speci- 
fied that he must come with so much mathematics^ so much 
physics, so much mechanics, so much something else, as will 
enable him to profit by highly organized professional engineer- 
ing instruction. The time has come> gentlemen, for the schools 
of law to say that they wish their entering students to come 
to them, having pursued, systematically and well, those studies 
in the field of economics and history and social science that 
will prepare them to understand the fundamental concepts of the 
law, their development and their application. 

Of course, the moment a student approaches the law, he begins 
the study of history from a new angle and in a new way. But it 
will not harm him to have had those larger and fuller and non- 
legal views of history that open the mind, that inform him as to 
human experience, and that prepare it to give a new meaning to 
the early stages in the development of the law of contracts and 
torts and real property. 

Where shall these studies be had? Many of us have followed 
with interest your discussions and your reports, and those held 
and made under your auspices, relative to this topic. I think, 
without risk of being misunderstood, I may say that there is noth- 
ing sacred about a college education. There are some persons who 
go to college who would be distinctly improved by being kept 
away. There are doubtless many others who would gain marked 
advantage, for themselves and for the society in which they live, 
' if the opportunity for a college training were open to them. But, 
in that connection, you must bear in mind that the word 
^^ college '' no longer has a definite or a uniform meaning. A 
college, in the United States, is almost anything which bears 
• that name. If it shall be chartered under the general act of 
incorporation in the District of Columbia, for example, it quickly 
may assume the form of a public nuisance. 

When you use the word '* college,'' it is important to remem- 
ber, 'first, that you are dealing with a term which has been 
defined by law in but very few states — ^I recall but two at the 
moment — there may be others. Next, that you are dealing with 
an institution which, for 25 years, has been going through a very 
extraordinary series of changes, and which doubtless will con- 
tinue to go through similar changes for some time to come, 



NICHOLAB liUBBAY BUTLEB. 283 

§ince we are living in a period of development and change. 
Mere going to college 'is not sufficient. It ought to indicate dis- 
ciplined maturity. Perhaps it does. If it does, so far so good. 
But the point is, has that going to college for a longer or a 
shorter time included a serious and scholarly study of the 
fundamental pre-l^al subjects to which I have been making 
reference? That is something which will bear looking into. 

One other point. I have been told that it is objedied to 
raising the standard of admission to the legal profession, that this 
would put such admission beyond the reach, for financial reas- 
ons, of very many ambitious and mentally well-equipped Ameri- 
can youth. I am disposed to doubt it. 

There has grown up in this country, and it is rapidly multi- 
plying, an institution known as the Junior College. That Junior 
College will be foimd one of these days in pretty much every city 
in the union that has fifty thousand or seventy-five thousand 
inhabitants. It is the result of an evolution that has been going 
on for forty years, and indicates one of the most striking changes 
in the oi^ganization of American education. Our old-fashioned 
college took a boy at sixteen or seventeen, kept him until he 
was twenty or twenty-one, and carried him through a substan- 
tially uniform and prescribed course of study. As intellectual 
interests multiplied, as the program became overcrowded, as 
the choice of studies was introduced, all that was changed, 
until now, the number of youths in a given college and in a 
given year who pursue exactly the same program of instruction 
is very small, indeed. 

The consequence is that a situation developed which was not 
very fortunate, because we found we were destroying the cotnmon 
body of knowledge which holds men together. The real argument 
for prescribed studies to youth of college age is not alone such 
value as they may have for discipline and information, but it lies 
in the fact that it is highly important, especially in a self -govern- 
ing society, that men and women should be united by a common 
body of knowledge, before their special interests begin to diverge 
and move apart. 

In the endeavor to correct an unsatisfactory situation, the pre- 
scribed and ordered studies were put into the first two years of 
the old four-year college course. Then it began to be found that 



264: PBBLIMINABY HDUOATION FOB LAWYEBS. 

many communities could afford to maintain that type of instruc- 
tion in connection with their high schools^ and the Junior College 
began to grow up all over the land. There are hundreds of such 
institutions now^ very soon there will be thousands. Their devel- 
opment is certain to follow the development of the high schools 
themselves, which have multiplied many times in the last forty 
years. This kind of instruction, of which I understand you 
are in search, will be found not alone in the great universities 
and the endowed colleges in the East, North, South, and West, 
but it will be found almost at the doorsill of the intending stu- 
dent of the law, in the community where is his home, which can 
provide enough students year by year to justify the taxpayer in 
maintaining this type of institution. 

So that, in dealing, gentlemen, with the preliminary educa- 
tion of the law student, you are dealing not alone (and this 
I am especially anxious to make clear) with something which 
affects the Bar and your profession, but you are dealing with a 
large and far-reaching public interest. You are dealing with 
variable quantities, you are dealing with a complicated situa- 
tion, made so by the student and the variety of our country, its 
population, its needs, its economic situation. And it must be 
dealt with, if it ip to be dealt with constructively and helpfully, 
not only in a spirit of understanding, but of sympathy ; not only 
from the viewpoint of professional opportunity, but of public 
service. And when that shall be accomplished, and when the 
student shall be launched upon the study of law as law with a dis- 
ciplined maturity such as I have described, with a body of knowl- 
edge in these historical and economic fields such as I have tried 
briefly to summarize, you will have carried very far forward the 
standards of usefulness of your profession, not only as a profession 
devoted to high ideals and public service, but as a profession 
which is one of the foundation stones of the social order of among 
men in the modern, self-governing state. 



REPORT 

. or THS 

COMMITTEE ON PROFESSIONAL ETHICS AND GRIEVANCES. 

To the American Bar Association : 

Your Committee on Professional Ethica and Grievances re- 
spectfully submits its annual report. 

The Committee has observed and is glad to call attention to 
the frequency with which the courts now refer to and quote the 
Canons of Ethics adopted by the Association. The Committee 
is informed that North Carolina has recently been added to the 
list of the States whose courts of last resort have thus, approved 
the work of the Association. 

The following matters have come before the Committee for 
attention during the past year : 

1. Complaints against members of the Bar in different states. 
As this Committee has no jurisdiction to act on such complaints 
they have been transmitteil to the appropriate committees of the 
particular state or local bar associations having jurisdiction. 

2. Complaints against members of the Association. The com- 
plaints received of this character came late in the year. As the 
Committee has no present authority to make an investigation of 
such complaints, action on them was deferred until it is known 
whether the Association adopts the amendments hereinafter 
recommended giving the Committee such authority. 

3. The solicitation of business by so-called *' patent attorneys.'* 
Many complaints were received regarding the solicitation of 
patent business by laymen calling themselves patent attorneys. 
Investigation showed that the rules of the Patent Office require 
that all persons representing applicants^ whether lawyers or lay- 
men, be registered in the Patent Office at ^' attorneys,'' the wot A 
supposedly being used to designate attorneys-in-fact. Having 
registered themselves as such patent attorneys, laymen have made 
use of the term in advertising for business. This advertising has 
been carried to feuch an extent that the majority of all patent 
applications are made through these laymen patent attorneys. 
The use of this term in such advertising has misled the public — 
as it apparently was intended it should — into believing that it 
was dealing with attorneys at law. As a result abuses have arisen 
and our profession has received the blame for the misconduct of 
some of these so-called attorneys. 

(286) 



286 BEPORT OF GOMMITTBB ON 

Under a recently enacted statute, the Commissioner of Patents 
is given authority to formulate and prescribe rules for the r^^nla- 
tion of the conduct of these registered patent attorneys. Your 
Committee therefore recommends that the Association request 
the Commissioner of Patents to include in such regulations as 
may be adopted, a rule prohibiting the solicitation of business 
by these registered patent attorneys so long as they are designated 
as and allowed to describe themselves as attorneys or patent 
attorneys. 

4. Tne attention of the Committee has also been called to the 
fact that the rules of the office of the Commissioner of Internal 
Revenue now require that all persons, whether lawyers or laymen, 
prosecuting claims before that office, register as attorneys for the 
claimant, and that some of the laymen so registered are now desig- 
nating and advertising themselves as '' Income Tax Attorneys," 
with the consequent promise of the same abuses arising from this 
misuse of the word a£ in the case of patent attorneys. 

Your Committee therefore recommends that a Special Com- 
mittee be appointed by the President to investigate and determine 
by what right, if any, laymen who are registered as attorneys-in- 
fact in the Patent Office and in the Office of the Commissioner of 
Internal Revenue use the words " patent attorney " or " income 
tax attorney '* in designating their work, and to recommend to the 
Association such action as may bring about the discontinuance of 
these misleading designations. 

6. During the year the Executive Committee appointed a 
Special Committee to prepare an amendment to the By-Laws 
relative to the duty and authority of this Committee. The Spe- 
cial Committee drafted an amendment to By-Law VII of the By- 
Laws which amendment has been approved by the Executive 
Committee and published in the Joubnal in accordance with 
Article V of the Constitution.. The Committee therefore recom- 
mends that By-Law VII of the By-Laws be amended by substi- 
tuting for the last paragraph thereof, the following: 

The Committee on PlrofeflBional Ethics and Grievanoes shall: 

(1) Assist state and local bar associations in all matters ooneemiDg 
their activities in respect to the ethics of the profession, collect ana 
communicate to the Association information concemiiuc such activities 
and, from time to time, make recommendations on the subject to the 
Aflwdation. 

(2) Be authorizedi in its discretion, to express its opinion conoeminff 
proper .prof essiona] conduct and particularly concerning the application 
of the CanoDS of Ethics thereto, when consulted by officers or committees 
of state or local bar associations. Such expression of opinion shall only 
be made after a consideration thereof at a meeting oi the Committee 
and. approval by at least a majority of the Committee. 

(3) Be authorized to hear, in meeting of the Committee, upon its own 
motion, or upon complaint preferred, charges of professional misconduct 
against any member of this Association. As a result of such hearing it 



PBOFBSSIONAL ETHICS AND GRIEVANCES. 287 

may recommend to the Executive Committee the forfeiture of the right 
to membership of any such member. All such recommendations shall be 
accompanied By a transcript of the evidence and shall only be made after 
the accused member has been given notice of the nature of the com- 
plaint and after a reasonable opportunity has been accorded him or her 
to submit evidence and argument in defense. 

(4) Forfeiture of the membership of any member as hereinbefcHre 
provided shall become effective when approved by a majority of all of 
the members of the Executive Committee and all interest in the 
property of the Association of persons whose membership is so forfeited 
shall ipso facto vest in the Association. The membership in the Asso- 
ciation, and all interest in the property of the Association of a member 
shall ipso facto cease upon his disbarment, or a final judgment of 
conviction of a felony. 

(5) -Whenever specific chaiiges of unprofessional conduct shall be made 
against any member of the Bar, whether or not a member of this Asso- 
ciation, and the Chairman of the Committee on Professional Ethics and 
Grievances is of the opinion that the case is such as requires investigation 
or prosecution in the coiuls, the same shall be referred by the Chairman 
to the appropriate state or local bar association where sudi attomev 
resides and it shall be the duty of the Chairman, in co-operation with 
the local Vice-President of this Association for the State where such 
attorney resides, to uiige the appropriate officers or committees of state 
or local bar associations to institute inquiry into the merits of the 
complaint, and to take such action thereon as may be appropriate, with 
a view to the vindication of lawyers unjustly accused, and the discipline 
by the appropriate tribunal of lawyers guilty of unprofessional conduct. 

(6) The Committee, with the approval of the £h[ecutive Commitee, 
shall formulate rules not inconsistent with this by-law to give effect to 
the foregoing provisions, which rules shall be published in the annual 
reports of the Association. 

Thomas Francis Howe, Chairman^ 
James D. Shearer, 
Charles Thaddeus Terry, 
Morris A. Soper, 
Henry TT. Sims. 



10 



REPORT 

OF THB 

COMMITTEE ON COMMERCE, TRADE AND COMMERCIAL 

LAW. 

To the American Bar Association: 

Your Committee on Commerce, Trade and Commercial Law, 
reports as follows : 

I. 

SuMMABY OP Recommendations. 

Your committee recommends : 

First: The adoption of a resolution by the American Bar 
Association reiterating and reaffirming resolutions numbered 
First, Second, Third, Fourth, Fifth, Sixth, Twelfth and Seven- 
teenth, of the report of your Committee at the Cincinnati, Ohio, 
meeting, August 31 to September 2, 1921, in 1921 Report Ameri- 
can Bar Association, Vol. XLVI, pp. 309-10-11 and 312. 

Second: That a resolution be adopted urging the National 
Conference of Commissioners on Uniform State Laws to prepare 
such amendments as are needed in the Uniform Sales and Uni- 
form Warehouse Receipts Acts, to give the latter full negotiability 
accorded to bills of lading under the Uniform Bills of Lading 
Act, and recommend the same for approval by the American Bar 
Association, and adoption by the states which have enacted the 
Uniform Sales Act and the Uniform Warehouse Receipts Act. 

Third: That a resolution be adopted giving your committee 
further time for the consideration of the uniformity of the 
Law Merchant in North and South America. 

Fourth: That a resolution be adopted that yoifr committee 
give further consideration to the subject of a general system of 
United States Commercial Courts, along the lines of the English 
Commercial Courts. 

Fifth: That a resolution be adopted giving your committee 
further time to submit a draft of an act to codify the law of 
Common Carriers in Interstate and Foreign Commerce. 

Sixth: That a resolution be adopted disapproving a Mer- 
chandise Marks Act as a part of an act dealing with trade marks 
and copyrights; and that your committee be given further time 
to prepare a draft of a Merchandise Marks Act. 

(288) 



COMMEBGE^ TRADB AND COMMERCIAL LAW. 389 

Seventh: That a resolution be adopted approving the United 
States Sales Act- (Appendix A.) 

Eighth: That a resolution be adopted in the matter of Pro- 
fessional Ethics and Trade Associations ; that the personal rela- 
tionship between attorney and client should be preserved; that 
the services of a lawyer should not be treated as merchandise 
to be trafficked in; that there should not be solicitation of the 
professional employment, either by indirection or direction; 
that there should not be a division of fees by a lawyer with a 
layman ; that the exploitation of the office of the lawyer for the 
profit of another, is an abuse of its function, and that it is in the 
public interest that the lawyer must be free from divided alleg- 
iance and inconsistent obligations. For these reasons, therefore, 
this Association disapproves of the organization of adjustment 
bureaus wherein the lawyers* services are furnished by the Asso- 
ciation to its members, and, whether there is a division of fees 
with such an association or not, where the direct relationship of 
attorney and client does not exist. 

Ninth: That a resolution be adopted approving Senate Bill 
77, providing for the payment of interest on judgments rendered 
against the United States for money due on public work. 

Tenth : That a resolution be adopted referring to the National 
Conference of Commissioners on Uniform State Laws, the bill 
herewith submitted by your committee, as to a Uniform State 
Arbitration Act. (Appendix C.) 

Eleventh: That a resolution be adopted approving form of 
treaty to be negotiated with foreign countries for making effective 
international arbitration in commercial disputes and contro- 
versies, herewith submitted. (Appendix D.) 

Twelfth: That a resolution be adopted approving suggested 
provisions of a bill for a United Stetes Act for the arbitration 
of actual commercial controversies and disputes, herewith sub- 
mitted. (Appendix B.) 

Thirteenth: That a resolution be adopted, approving the 
amendment of Section 22a of the United States Bankrupt Act, 
by adding at the end of said section the following : 

And after any general reference the referee shall, unless the judge 
orders otherwise, have jurisdiction in plenary suits under Sections 60b; 
67e; and 70e for the recovery of property transferred by way of prefer- 
ence and property fraudulently transiferred. 

11. 

(a) Your committee, pursuant to the invitational letter and 
Agenda, held a three days' public hearing in the assembly room 
of the Merchants* Association, Woolworth Building, 233 Broad- 
way, N"ew York City, March 29-31, inclusive, 1922, at which 



290 REPORT OF COMMITTEE ON 

more than twenty-five representatives of variouB interests, indus- 
tries and associations appeared on behalf of the respective 
interests represented by them, and vigorously discussed the 
questions of interest to them and constructively criticized the 
proposed drafts of laws being considered by your committee. 

(b) Tour committee, pursuant to resolutions Fifteenth and 
Sixteenth in " Summary of Becommendations " of 1921 report, 
has caused to be introduced, the bill to amend the National 
Bankruptcy Act, the same being introduced by Senator Selden P. 
Spencer, and being numbered 2921 ; and the Pomerene Bills of 
Lading Act, bill being introduced by Senator Atlee Pomerene, 
and being numbered 2530. The bills are now pending and 
satisfactory hearings have been had on them. 

(c) Your committee considered, pursuant to directions of 
Executive Committee, Senate Bill 77, and reports in favor of 
same by resolution Ninth hereof. 

(d) Bespectin^ Becommendation Sixth, of the Summary of 
Becommendations of 1921 Beport, your committee has had under 
consideration for some time, the important subject of drafting an 
act to codify the Law of Common Carriers in Interstate and 
Foreign Commerce. The work is of such magnitude as to require 
not only the patient and prolonged consideration of the com- 
mittee itself, but the assistance of an expert draftsman. The 
committee has called to its assistance at different times. Professor 
Felix Frankfurter, but the work has from time to time been 
interfered with and great progress has not been made in the 
process of codification, and your committee recommends that 
further time be given for the submission of such an act to the 
Association. 

(e) Beporting on the Eighteenth Becommendation, 1921 Be- 
port, that the conunittee prepare and submit a Merchandise 
Mark Act as to Interstate and Foreign Commerce. The Section 
of Patent, Trade Marks and Copyright Law has prepared a draft 
of the Trade Mark Act which embodies a parap^raph covering 
the question of false descriptions and representations in the 
sale of merchandise, and particularly embodies the idea of this 
committee as to the kind of a Merchandise Marks Act which 
Congress ought to pass. Your committee, however, is of the 
opinion that a Merchandise Marks Act should not be made a 
part of an act that deals with trade marks; that the subject is 
distinct from the subject of trade marks, and your committee 
recommends to this Association the adoption of a Merchandise 
Marks Act in substance as referred to in paragraph No. 30 of the 
committee draft of Trade Mark Act of the Section of Patent, 
Trade Mark and Copyright Law or this Association, to-wit : 

That any person who ahall affix, apply or annex, or use in connection 
with any article or articles of merdiandise, or any container or containers 



GOMMEROB^ TEADB AND OOMICBRGIAL LAW. 291 

of the same, a false designation or origin, or any false description or 
representation including words or other symbols, tending falsely to 
identify the origin of the merchandise, or falsely to describe or represent 
the same, and shall cause such merchandise to enter into interstate or 
foreign commerce, or commerce with Indian tribes, and any person who 
shall knowingly cause or procure the same to be transported in interstate 
or foreign commerce or commerce with Indian tribes, or shall knowingly 
dehver the same to any carrier to be so transported, shall be liable to an 
action at law for damages, and to a suit in equity for an injunction, at 
the suit of any person, firm or corporation doing businesB in the locality 
falsely indicated as that of origin, or in the region in which said locality 
is situated, or of any person, fijrm or corporation who is or is likely to be 
damaged by the use of any false description or any representation, or at 
the suit of any association of such persons, firms or corporations, and 
any article marked or labeled in contravention of the provisions of this 
section, diidl not be imported into the United States, or admitted to 
entiy at any custom house of the United States. 

(f ) With respect to Becommendatioxifl Tenth, Eleventh, Nine- 
teenth and Twenty-Third, 1921 Beport. No suggestions or 
information by persons or associations interested were presented 
to your committee, and your committee makes no recommenda- 
tion thereon. 

(g) Beporting as to the Twenty-Second Becommendation of 
the Summary of Becommendations 1921, Beport. Your com- 
mittee reports that there was a ver^ extended discussion on this 
topic, and the public hearing occupied more time in its presentar 
tion by those who were in favor of it and by those who were 
opposed to it than any other matter before the committee. 

One of the very active representatives of the National Credit 
Men's Association, who was familiar with the operation of credit 
bureaus throughout the United States^ was very insistent that 
every state should permit corporations to be organized so as to do 
what he called *^ Adjustment Bureau Work.'' In his argument 
he presented many reasons why it should be done. He was 
encouraged in its presentation by a member of a very active 
collection law firm in one of the principal esjstem cities, who 
spoke along the economical lines. Neitiier of them, however, 
could meet the contention that by the organization of such cor- 
porations, and the handling of the legal business in the manner 
provided by them, it would do away absolutely with that close 
and personal relationship that exists between a lawyer and his 
client, if the whole matter was simply a matter of barter and 
sale, and where a creditor would have to do what he believed was 
not for his best interests, or be thrown out of the association of 
which he was a member. 

They recognized the value of high, ethical principles and 
said they should be maintained. 

Equally and forcibly opposed to their argument were certain 
lawyers and representatives of the New York County Lawyers' 
Association. 



292 REPORT OF COMMITTEE ON 

We had before us the report of the Committee on Unlawful 
Practice of the Law, of the New York County Lawyers' Asso- 
ciation for the year 1922, the announcement of the opinion of 
the same association by the Committee on Professional Ethics 
for the year 1921, the acts which had been introduced in the 
Senate and in the Assembly of the New York Legislature, endeav- 
oring to modify the laws of New York so as to permit cor- 
porations to be organized for the operaition of adjustment 
bureaus, which acts were defeated in the legislative committees. 
After due consideration of all these matters, your committee 
unanimously endorsed the following resolution and the recom- 
mendation to be made to the Association, to-wit : 

That a resolution be adopted in the matter of Professional 
Ethics and Trade Associations; that the personal relationship 
between attorney and client should be preserved ; that the services 
of a lawyer should not be treated as merchandise, to be trafficked 
in; that there should not be solicitation of the professional 
employment, either by indirection or direction ; that there should 
not be a division of fees by a lawyer with a layman; that the 
exploitation of the office of the lawyer for the profit of another, 
is an abuse of its functions; and that it is in the public interest 
that the lawyer must be free from divided allegiance and in- 
consistent obligations. For these reasons, this Association, there- 
fore, disapproves of the organization of adjustment bureaus 
wherein the lawyer's services are furnished by the association 
to its members, and, whether there is a division of fees with such 
an association or not, where the direct relationship of attorney 
and client does not exist. 

(h) Beporting on the Seventh Becommendation of 1921 Be- 
port, your committee has carefully considered the draft of a bill 
relating to Sales and Contracts to Sell in Interstate and Foreign 
Commerce, has invited suggestions, and has received assistance 
and advice from Professor Samuel Williston, employed as expert 
draftsman, and who sat with the committee at its hearing. 

(i) The committee submits a draft of a bill as revised and 
amended, and moves that a resolution be adopted approving the 
bill as now submitted by the committee. (See Appendix A, for 
draft.) 

(j) Bespecting the Twelfth Becommendation of 1921 Beport, 
your committee is still of the opinion that the changes suggested 
are desirable, and recommends that a resolution be adopted, 
urging the National Conference of Commissioners on Uniform 
State Laws to prepare such amendments as are needed to accom- 
plish the desired result and recommends the same for approval 
by the American Bar Association, and adoption by the states 
which have enacted the Uniform Sales Act and the Uniform 
Warehouse Beceipts Act. 



GOMMEBOE^ TRADB AND COKKERCIAL LAW. 293 

(k) Eeporting on the Twentieth Recommendation of the 1921 
Report, your committee gave further consideration to the subject 
of the uniformity of the law merchant' in North and South 
America, and gathered some additional information of con- 
siderable vdlue. The committee suggests that the subject have 
further consideration. 

(1) Respecting the Twenty-First Recommendation of the 1921 
Report. Owing to the number of matters demanding attention, 
the committee was not able this year to give much consideration 
to a general system of United States Commercial Courts, along 
the lines of the English Commercial Courts. The matter is 
important and should be continued for further consideration. 

(m) Reporting on the Eighth and Fourteenth Recommenda- 
tions of the 1921 Report, your committee submits that, at its 
annual meeting held in St. Louie, Missouri, beginning August 
26, 1920 (Vol. XLV, Reports of the American Bar Association, 
p. 75), the Association, on motion of Mr. Boston, adopted a 
resolution that the Committee on Commerce, Trade and Com- 
mercial Law be requested to consider and report at the next 
annual meeting of the Association upon the further extension of 
the principle of commercial arbitration. Pursuant to this reso- 
lution, the committee submitted at the meeting of the Association 
at Cincinnati, Ohio, beginning August 31, 1921, in its report 
(Vol. XLVI, Reports of the American Bar Association, p. 309), 
a draft of a Ulniform State Arbitration Act and a draft of a 
Federal Act, both being modeled generally and substantially 
upon the N"ew York Arbitration Law, which has been held to be 
constitutional in matter of Berkovitz, 230 N. Y., 261. The 
Arbitration Act of New York was prepared by committees of 
the New York State Bar Association, in cooperation with the 
Chamber of Commerce of the State of New York, and was in 
effect the carrying forward of the recommendations of the 
National Conference of Bar Associations held at Cleveland in 
the year 1918, in which the Associations forming the conference 
were urged to extend the principle of commercial arbitration. 
The New York statute not only removes the anachronism in the 
law of nearly three centuries' standing, namely, that agreements 
to arbitrate are revocable at the pleasure of either party, but 
also provides a speedy and effective method for performance of 
the arbitration agreement. The testimony received by your 
committee at the public sessions in New York, March 29, 30, and 
31, 1922, confirms the testimony received by the committee in 
1921, namely, that there is a great satisfaction on the part of 
business men with the principles and procedure of the New York 
Law and that it is deeired that these principles should be made 
effective in interstate commerce, intrastate commerce and foreign 
commerce. During the year Secretary of Commerce, Hoover, 



294 REPOBT OF COHMITTBE ON 

requested permisaion to introduce the proposed Federal Arbitra- 
tion Statute in Congress. Copies of the draft of the federal 
statute were furnished* to him, and your committee has had the 
benefit of his advice^ as well as that of his assistant^ Mr. James B. 
Stafford, and the solicitor of his department, Mr. William E, 
Lamb. At the public hearings held by the committee, various 
suggestions for the improvement of the statutes were made. 
Your committee acknowledges specially the assistance of Mr. 
Charles L. Bernheimer, Chairman of the Committee on Arbitra- 
tion of the New York State Chamber of Commerce. Your 
committee went over these suggestions in executive session very 
carefully and had the assistance of Professor Samuel WiUiston 
in considering them. The result is a very much improved draft 
of both the federal statute and the proposed uniform state statute, 
which are now submitted as a part of this report, marked " Ap- 
pendix B ^' and " Appendix C.*' 

It is highly desirable that the federal statute and the uniform 
state statute should dovetail and fit each with the other. The 
uniform state statute has received the consideration of the Com- 
missioners on Uniform State Laws, ^ho appointed a special 
committee to deal with the subject, of which Mr. Alexander H. 
Bobbins was chairman. Owing to the untimely death of Mr. 
Bobbins he was unable to complete his work upon this draft and 
to give the committee the benefit of his suggestions and criti- 
cisms. His successor, Mr. James H. Harkless, of Kansas City, 
Missouri, has been in correspondence with your committee, and 
his tentative draft of a statute, while differing in certain respects, 
is in the same general direction as that contained in the drafts 
here submitted. Because of the constitutional questions passed 
upon in the matter of Berkovitz, and the general success to 
which the procedure in New York has attained, the committee 
has adhered very closely to the New York statute, modifying it 
only in very slight respects. It believed that this statute in the 
present form will have the approval of the Secretary of Com- 
merce and of the appropriate committees in both Houses of 
Congress, and that the state statute, following the same lines, 
will, if approved by the Association, be adopted by the Legis- 
latures of the respective states. A bill, following the lines of the 
committee's draft was introduced in the New Jersey legislature 
at the session of 1922, and passed the Assembly, but reached the 
Senate too late to be passed by that body. 

At the request of the Committee on Arbitration, of the New 
York State Chamber of Commerce, a member of your committee 
and counsel for that chamber, drew a form of treaty to be negoti- 
ated with foreign countries for the purpose of making effective 
international commercial arbitration agreements. This treaty 
was submitted to Secretary of Commerce Hoover. The originju 



/ 

COMMERCE^ TRADE AND COMMERCIAL LAW. 295 

draft has been very much revised by your committee, and is 
submitted herewith for the approval of the Association.  (Ap- 
pendix D.) . 

In the opinion of your committee, the adoption of the inter- 
national treaty, the federal statute and the uniform state statute 
will put the United States in the forefront in this procedural 
reform. It will raise the standards of commercial ethics. It will 
reduce litigation. It will enable business men to settle their 
disputes expeditiously and economically, and will reduce the 
congestion in thQ federal and state courts. In pressing forward 
this improvement in the law, the Association will align itself with 
the best economic and commercial thought of the country and 
will do much to overcome the criticism of the " law^s delays.'' 

Your committee also considered a motion favoring the amend- 
ment of Section 22a of the XT. S. Bankrupt Act by adding words at 
the end of said section giving referees in bankruptcy power in 
certain cases to hear suits to recover preferences and property 
fraudulently conveyed and unanimously voted : 

That a resolution be adopted approving the amendment of 
Section 22a of the United States Bankrupt Act, by adding at the 
end of said Section the following: 

And after any general reference the referee shall, ualeas the judge 
orders otherwise, have jurisdiction in plenary suits under Sections 0Ob ; 
67e ; and 70e for the recovery of property transferred by way of prefer- 
ence and property fraudulently tranmerred. 

The length of this report is occasioned by the number of 
subjects brought before your committee for its consideration. 

Bespectf ully submitted, 

W. H. H. Piatt, Chairman, 
JuLTDS Henry Cohen, 
HoLLis E. Bailet, 
Howard H. Baldridge, 
Provinob M. Poque, 
Dated June 1, 1922. Committee. 



296 REPORT OF COMMITTEE ON 



APPENDIX A. 

SECOND DRAFT OF A BILL. 

Relating to Sales and Contracts to Sell in Interstate 

AND Foreign Commerce. 

Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, That a sale or contract 
to aell shall be governed by this act 

(a) If made in the District of Columbia; or 

(b) If such sale or contract to sell includes as one of its expressed or 
implied terms an agreement that the goods shall be transportea, whether 
at the seller's own expense or not and whether the property in the goods 
passes at or before the time of shipment or not, from a foreign country 
to one of the states of the United States; or from one of the states of 
the United States to or through another state or a foreign country. 

PART I. 

Formation pf thb Contract. 

Section 2,^lContracts to SeU and Sales.l (I) A contract to sell goods 
is a contract whereby the seller agrees to transfer the property in goods 
to the buyer for a consideration called the price. 

(2) A sale of goods is an agreement whereby the seller transfers the 
property in goods to the buyer for a consideration called the price. 

(3) A contract to sell or a sale may be absolute or conditional. 

(4) There may be a contract to sell or a sale between one part owner 
and another. 

Sbc. 3. — [Capacity — lAabiUties for Necessaries.'] Capacity to buy and 
sell is regulated by the general law concaning capacity to contract, and 
to transfer and acquire property. 

Where necessaries are sold and delivered to an infant, or to a person 
who by reason of mental incapacity or drunkenness is incompetent to 
contract, he must pay a reasonable price therefor. 

Necessaries in this section mean goods suitable to the condition in 
life of such infant or other person, and to his actual requirements at the 
time of delivery. 

Formalities of the Contract, 

Sbc. 4. — {Form of Contract or Sale.] Subject to the provisions of this 
act and of any statute in that behalf, a contract to sell or a sale may be 
made in writing (either with or without seal), or by word of mouth, or 
partly in writing and partly by word of mouth, or may be inferred from 
the conduct of the parties. 

Sec. 5. — [Statute of Frauds.] (1) A contract to sell or a sale of any 
goods or choses in action of the value of five hundred dollars or up- 
wards shall not be enforceable by action unless the buyer shall accept 
part of the goods or choses in action so contracted to be sold or sold, and 
actually receive the same, or give something in earnest to bind the con- 
tract, or in part payment, or unless some note or memorandum in writing 
of the contract or sale be signed by the party to be charged or his agent 
in that behalf. 



• COMMEBOB, TRADI AND OOMMBROIAL LAW. 297 

(2) The proviaioiui of this seotion apply to every such contract or 
sale, notwitfustandiDg that the goods may be intended to be delivered at 
some future time or may not at the time of such contract or sale be 
actually made, procured, or provided, or fit or ready for delivery, or 
some act may be requisite lor the making or completing thereof, or 
rendering the same fit for delivery; but if the goods are to be manu- 
factured by the seller especially for the buyer and are not suitable for 
sale to others in the ordinary course of the seller^s business, the pro- 
visions of this section shall not apply. 

(3) There is an acceptance of goods within the meaning of this section 
when the buyer, either before or after delivery of the goods, expresses 
by words or conduct his assent to becoming the owner of those specific 
goods. 

(4) There is an actual receipt of goods within the meaning of this 
section if the goods are in the buyer's posseenon at the time of the 
bargain, though no act is done in regard to them. 

(5) The seller cannot be the agent of the buyer either to accept or 
actually to receive the goods, but a third person may be the agent of 
both parties for either purpose, or for both purposes. 

Subject Matter oj Contract. 

Sec. 6. — [Existing and Future Goods.] (1) The ^oods which form the 
subject of a contract to sell may be either existing goods, owned or 
possessed by the seller, or goods to be manufactured or acquired by the 
seller after the making of the contract to sell, in this act called " future 
goods." 

(2) There may be a contract to sell goods, the acquisition of which by 
the seller depends upon a contingency which may or fnay not happen. 

(3) Where the parties purport to effect a present sale of future goods, 
the agreement operates as a contract to sell the goods. 

Sbc. 7.— [l/ndivtrfcd Shares.] (1) There may be a contract to sell or 
a sale of an undivided share of goods. If the parties intend to effect 
a present sale, the buyer, by force of the agreement, becomes an owner 
in common with the owner or owners of the remaining shares. 

(2) In the case of fungible goods, or of any goods which by custom 
or the agreement of parties are treated as fungible, there may be a sale of 
an undivided share of a specific mass, though the seller purports to sell 
and the buyer to buy a definite number, weight or measure of the goods 
in the mass, and though tlie number, weight or measure of the goods in 
the mass is undetermined. By such a sale the buyer becomes owner in 
common of such a share of the mass as the number, weight or measure 
bought bears to the number, weight or measure of the mass. If the mass 
contains less than the number, weight or measure bought, the buyer 
becomes the owner of the whole mass and the seller is bound to make 
good the deficiency from similar goods unless a contrary intent appears. 

Sbc. 8. — [Destruction o] Goods Sold.] (1) Where the parties purport 
to sell specific goods, and the goods without the knowledge of the seller 
have wholly perished at the time when the agreement is made, the 
agreement is void. 

(2) Where the parties purport to sell specific goods, and the goods 
without the knowledge of the seller have perished in part or have wholly 
or in a material part so deteriorated in quality as to be substantial^ 
changed in character, the buyer may at his option treat the sale — 

(a) As avoided, or 

(b) As transferring the property in all of the existing goods or in so 
much thereof as have not deteriorated, and as hinding we buyer to pay 



298 BBPOBT OF GOMMITTBB ON 



 

the full agreed price if the sale was indivisible or to pay the Agreed price 
for the goods in which the property passes if the sale was divisible. 

Sec. 9 r— [Destruction of Goods Contracted to be^Sold,! (1) Where 
there is a contract to seU specific goods, and subsequently, but before 
the risk passes to the buyer, without any fault on the part of the seller 
or the buyer, the goods wholly perish, the contract is thereby avoided. 

(2) Where there is a contract to sell specific goods, and subsequently, 
but before the risk passes to the buyer, without any fault of the seller or 
the buyer, part of the goods perish or the whole or a material part of the 
goods so deteriorate in quality as to be substantially changed in character, 
the buyer may at his option treat the contract — 

(a) As avoided, or 

(b) As binding the seller to transfer the property in all of the existing 
goods or in so much thereof as have not detenorated, and as binding the 
buyer to pay the full agreed price if the contract was indivisible, or to 
pay the agreed price for so much of the goods as the seller, by the buyer's 
option, is bound to transfer if the contract was divisible. 

Under this section, and under the preceding section, merely taking the 
existing or uninjured goods into his possession shall not be deemed a 
conclusive exercise of his option by the buyer ; and nothing herein shall 
preclude the enforcement of an express or implied agreement of the 
parties that the buyer shall become owner of the existing or the uninjured 
l^oods at a fair valuation thereof, though the contract or sale was 
mdivisible. 

The Price. 

Sec. 10. — [Definition and Ascertainment of Price.} (1) The price may 
be fixed by the contract, or may be left to be fixed in such manner as , 
may be agreed, or it may be determined by the course of dealing between 
the parties. 

(2) The price may be made payable in any personal property. 

(3) Where transferring or promising to transfer any interest in real 
estate constitutes the whole or pari of the consideration for transferring 
or for promising to transfer the property in goods, this act shall not 
apply. 

(4) Where the price is not determined in accordance with the fore- 
going provisions the buyer must pay a reasonable price. What is a 
reasonable price is a question of fact dependent on the circumstances of 
each particular case. 

Sec. 11. — [Sale at a Valiiation.1 (1) Where there is a contract to sell 
or a sale of goods at a price or on terms to be fixed by a third person, 
and such third person, without fault of the seller or the buyer, cannot or 
does not fix the price or terms, the contract or the sale is thereby 
avoided ; but if the goods or any part thereof have been delivered to and 
appropriated by the buyer he must pay a reasonable price therefor. 

(2) Where such third person is prevented from fixing the price or 
terms by fault of the seller or the buyer, the party not in fault may have 
such remedies against the party in fault as are allowed by Parts IV and 
V of this act. 

Conditions and Warranties. 

Sk. I2.^[3ffeet of Conditions.] (1> Where the obligation of either 
party to a contract to sell or a sale is subject to any condition which is 
not performed, such party may refuse to proceed with the contract or 
sale or he may waive performance of the condition. If the other party 
has promised that the condition should happen or be performed, su<^ 
first-mentioned party may also, treat liie non-performance of tile con- 
dition as a breaeh of warranty. 



COMMERCE^ TRADB AND COMMBROIAL LAW. 299 

(2) Where the property ib the goods has not pasBed, the buyer may 
treat the fulfilhuent by ibe seller of his obligation to furnish goods as 
described and as warranted expressly or by implication in the contract 
to sell as a condition of the obligation of the buyer to perform his 
promise to accept and pay for the goods. 

(3) Where the seller contracts to sell goods ** to arrive " or " expected 
to arrive" at a certain place, it shall be presumed, unless a different 
intention appears that the buyer warrants that the goods have been or 
shall be duly offered for transportation to the place where they are said 
to be expected to arrive, but that if so tenderea, their due arrival is only 
a condition qualifying the obligations of both parties. 

Sac. IZ.-^lDe^nition of Express Warranty.} Any afi&rmation of fact 
or any promise by the seller relating to the goods is an express warranty 
if the natural tendency of such afimnation or promise is to induce the 
buyer to purchase the p^oods, and if the buyer purchases the goods relying 
thereon. No afiGurmation of the value of the goods, nor any statement 
purporting to be a statement of the seller's opinion only shall be con- 
strued as a warranty. 

Sbc. 14.— [/mpitsa Warranties of Title.} In a contract to sell or a sale, 
unless a contrary intention appears, there is — 

(1) An implied warranty on the part of the seller that in case of a 
sale he has a right to sell the goods, and that in case of a contract to sell 
he will have a right to sell the goods at the time when the property is 
to pass. 

(2) An impUed warranty that the buyer shall have and enjov quiet 
possession of the goods as against apy lawful claims existing at the time 
of the sale. 

(3) An implied warranty that the goods shall be free at the time of 
the sale from any charge or encumbrance in favor of any third person, 
not declared or known to the buyer before or at the time when the con- 
tract or sale is made. 

(4) This section shall not, however, be held to render liable a sheriff, 
auctioneer, mortgagee, or other person professing to sell by virtue of 
authority m fact or law a le^al or equitable inter^ of a thinl person in 
the goods which are the subject of the sale or contract to sell. 

Sbc. 15.— {Implied Warranty in Sale by Description.'] Where there 
is a contract to sell or a sale of goods by aescription, there is an implied 
warranty that the goods shall correspond with uie description and if the 
contract or sale be by sample, as well as by description, it is not sufficient 
that the bulk of the goods corresponds with the sample if the goods do 
not also correspond with the description. 

Sbc. 16. — [ImpUed Warranties of Quality.} Subject to the provisions 
of this act and of any statute in that behalf^ there is no implied warranty 
or condition as to the quality or fitness for any particular purpose of 
goods supplied under a contract to sell or a sale, except as follows: 

(1) Where the buyer, expressly or by implication, makes known to the 
seller the particular purpose for which the goods are required, and it 
appears that the buyer relies on the seller's sldll or judgment (whetiier 
he be the grower or manufacturer or not), there is an implied warranty 
that the goods shal] be reasonably fit for such purpose. 

(2) Where the ffoods are bought by description from a seller who deals 
in goods of that description (whether he be the grower or manufacturer 
or not), there is an implied warranty that the goods shall be of mer- 
chantable quality. 

(3) If the buyer has examined the goods, there is no implied warranty 
as regards defects which such examination ought to have revealed. 

(4) Where the seller has contracted to sell unspecified goods, he is 
bound to deliver such goods as the contract requires, though he is neiUier 



300 REPORT OP COMMITTEE ON 



a dealer nor manufacturer. The effect of subsequent acceptance by the 
buyer of goods under the contract is governed by Section 36. 

(5) In the case of a contract to sell or a sale of a specified article under 
its patent or other trade name, there is no impliea warranty as to its 
fitness for any particular purpose. 

(6) An implied warranty or condition as to quality or fitness for a 
particular purpose may be annexed by the usage of trade. 

(7) An express warranty or condition does not negative a warranty or 
condition implied under tiiis act unless inconsistent therewiOi. 

Sale by Sample. 

Sec. 17. — {ImpUed Warranties in Sale by Sample,} In the case of a 
contract to sell or a sale by sample: 

(a) There is an implied warranty that the bulk shall correspond with 
the sample in quality. 

(b) Tnere is an implied warranty that the buyer shall have a reason- 
able opportunity of comparing the bulk with the sample, except so far 
as otherwise provided in Section 34. 

(c) If the seller is a dealer in goods of that kind, there is an implied 
warranty that the ^oods shall be free from any defect rendering them 
unmerchantable which would not be apparent on reasonable examination 
of the sample. 

(d) If tne sample is inconsistent with words of description agreed 
upon by the parties there is an implied warranty that the goods shall 
correspond to the description and shall not vary from the sample further 
than correspondence with the description requires. 

PART IL 
Transfbr of Pbopertt as Bbtwebn Sbllbb and Butsr. 

Sec. 18. — [No Property Passes Until Goods are Ascertained.] Where 
there is a contract to sell unascertained goods no property in the goods 
is transferred to the buyer unless and until the goods are ascertained, 
but property in an undivided share of ascertained goods may be trans- 
ferred as provided in Section 7. 

Sec. 19. — [Property in Goods Passes token Parties so Intend.] (1) 
Where there is a contract to sell specific or ascertained goods, or goods 
which, though unascertained, at the time of the bargain, nave sub- 
sequently become specified, the property in the goods is transxerred to the 
buyer at such time as the parties to the contract intend it to be trans- 
ferred. 

(2) For the purpose of ascertaining the intention of the parties, regard 
shall be had to the terms of the contract, the conduct of the parties, 
usages of trade and the circumstances of the case. 

Sec. 20. — [RiUes for Ascertaining Intention.] Unless a different inten- 
tion appears, the following are rules for ascertaining the intention of the 
garties as to the time at wnich the property in the goods is to pass to the 
uyer. 

Rule 1. — Where there is an unconditional contract to sell specific goods, 
in a deliverable state, the property in the goods passes to the Duyer 
when the contract is made, and it is immaterial whether the time of 
payment, or the time of delivery, or both, be postponed, or whether 
weighing or measuring the goods is necessary to fix the price. 

Rule i. — Where there is a contract to sell specific goods and the seller 
is bound to do something to the goods, for the purpose of putting them 
into a deliverable state, the property passes as soon as such thing has 
l^en done^ but not before.tbftt ume> 



COMMEROB, TRADE AND COMMEROIAL LAW. 301 

Rule 5.-— (1) When goods are delivered to the buyer ''on sale or 
return," or on other terms indicating an intention to make a present 
sale, but to give the buyer an option to return the goods instead of pay- 
ing the price, the property passes to the buyer on delivery, but he mur 
revest the property in the seller by returning or tendering the goods 
within the time fixed in the contract, or, if no tmie has been fixed, within 
a reasonable time. 

(2) When goods are delivered to the buyer on approval or on trial or 
on satisfaction, or other similar terms, the property therein passes to the 
buyer— 

(a) When he signifies his approval or acceptance to the seller or does 
any other act adopting the transaotioii; 

(b) If he does not signify his approval or lusoeptance to the seller, but 
retains the goods without giving notice of rejection, then, if a time has 
been fixed for the return of the goods, on the expiration of such time, 
and, if no time has been fixed, on the expiration of a reasonable time. 
What is a reasonable time is a question of fact. 

Ride 4^—W Where there is a contract to sell unascertained or future 
goods by description, and goods of that description and in a deliverable 
state are unconditionally appropriated to the contract, either by the seller 
witn the assent of the buyer, or by the buyer with the assent of the seller, 
the propoty in the goods thereupon passes to the buyer. Such assent 
may be expressed or implied, and may be given either before or after 
the appropriation is made. 

(2) Where, in pursuance of an order or a contract to sell, the seller 
delivers goods to the buyer, or to a carrier or other bailee for the purpose 
of transmission to or holding for the buyer, the seller is presumed to have 
unconditionally appropriated the goods to the contract, except in the 
cases provided for m toe next rules and in Section 21. 

If the goods conform to the order or contract, and the terms and 
mode of deliveiy to the carrier or other bailee were expressly or im- 
pliedly authorized by the buyer, the property is presumed to pass on 
such delivery except in the cases provided for in the next rules and in 
Section 21. This presumption is applicable although by the express or 
implied terms of the order or contract, the buyer is to pay the price 
before receiving delivery of the goods, and the goods are marked with 
the letters C. O. D. or uieir equivalent. 

Ride 6. — Where an order or a contract to sell requires the seller to 
deliver the goods at a particular place or to pay as a separate item the 
frei^t or cost of transportation to a particular place (whether or not 
these terms are indicated by stating the goods are to be delivered F. O. B. 
at the place) the property passes, except in the case stated in the follow- 
ing rule, when goods of the required description are delivered at that 
place in accordance with the terms of the order or contract. 

Rtde 6, — ^Where an order or a contract to sell requires the seller to 
deliver the goods at the buyer's residence or place of business (not merely 
at the town where such residence or place of business is situated), the 
property will not pass until the buyer, after inspection of the goods, has 
accepted them. 

Sbc. 21. — IReeervation of Right of Posseuion or Property when Goods 
are Shipped.] (1) Where there is a contract to sell specific goods, or 
where goods are subsequently appropriated to the contract, the seller 
may, by the terms of the contract or appropriation, reserve the right of 
possession or property in the goods until certain conditions have been 
fulfilled. The right of possession or property may be thus reserved not- 
withstanding the delivery of the goods to the buyer or to a carrier or 
other bailee for the purpose of transmission to the buyer. 



302 REPORT OF COMMITTRB ON 



(2) Where goods are shipped, and by the bill of lading the goods are 
deliverable to the seller or his agent, or to the order of the seller or of 
his agent, the seller therebv reserves the property in the goods. But if, 
except for the form of the bill of lading, the property would have passed 
to the buver on shipment of the goodlb, the seUer's property in the goods 
shall be deemed to be only for the purpose of securing x>^rfonnance by 
the buyer of his obligations under the contract, and tne buyer shall be 
deemed to have a property right in the goods analogous to that of a 
mortgagor or a buyer under a conditional sale. 

(3) Where goods are shipped in conformity with an order or a con- 
tract, and a single sum is fixed therein as the payment to be made by the 
buyer for the cost of the goods and their insurance and freight while in 
transit (whether or not these terms are indicated by the iettov C. I. F.), 
or for the cost of the goods and their freight while in transit (whether 
or not these terms are indicated by the letters O. F.), a reservation by 
the seller of the property in the goods or of the right of possession thereof 
shall be deemed to be only for the purpose of i^rocuring performance 
by the buyer of his obligations under the contract as provided in sub- 
section (2). 

(4) Where in conformity with an order or a contract, goods in the 
hands of a carrier or other bailee are made deliverable by the seller 
(either directly or by indorsement) by means of a document of title to a 
banker or other person who, under an agreement with and on bdialf of 
a customer or chent, pays or contracts to pay the price of the goods or 
makes an advance on the faith of such document, sudi banker or other 
person acquires the property in the goods, but only for the purpose of 
security, and the customer or client acquires a property right in the goods 
analogous to that of a mortgagor or a buyer under a conditional sale. 

(5) Where goods are shipped, and by the bill of lading the goods are 
deliverable to the order of the buyer or of his agent, or to the order of a 
banker or other third person, but poBsession of the bill of lading is retained 
by the seller or his agent, tne seller thereby reserves a right to the pos- 
session of the goods untO he has been paid the price. A retention of a 
straight bill of lading shall have no such effect. 

(6) Where the seUer of goods draws on the buyer for the price and 
transmits the bill of exchange and bill of lading together to the buyer 
to secure acceptance or pajrment of the bill of excnange, the buyer is 
bound to return the bill of lading if he does not honor the bill of ex- 
change, and if he wrongfully retains the bill of lading he acquires no 
added right thereby. If, however, the bill of lading provides that the 
goods are deliverable to the buyer or to the order of the btiyer, or is 
indorsed in blank, or to the buyer by the consignee named therein, one 
who purchases in good faith, f<^ value, the bill of lading or the goods fnmi 
the buyer will obtain the property in the goods although the bill of 
exchange has not been honored, provided that such purchaser has re- 
ceived delivery of the bill of ladmg indorsed by the consignee named 
therein, or of the goods, without notice of the facts making the transfer 
wrongful. 

(7) Transactions to which this section relates shall not be deemed 
mortgages or conditional aales within the meaning of statutes relating in 
terms to mortgages or conditional sales. 

8bc. 22. — [Sale by AuctionJl In case of sale by auction — 

(1) Where goods are put up for sale by auction in lots, each lot is 
the subject of a separate contract of sale. 

(2) A sale by auction is complete when the auctioneer announces its 
completion by the fall of the hammer, or in other customary manner. 
Until such announcement is made, any bidder may retract his bid, and 



COMMEBOB^ TRADE AND COMMERCIAL LAW. 303 

the auctioneer may withdraw the goods from aale milesB the auction has 
been announced to be without reserve. 

(3) A right to bid may be reserved expressly by or on behalf of the 
seller. 

(4) Where notice has not been given that a sale by auction is subject 
to a right to bid on behalf of the seller, it shall not be lawful for the 
seller to bid himself or to employ or induce any person to bid at such 
sale on his behalf, or for the auctioneer to employ or induce any person 
to bid at such sale on behalf of the seller or knowingly to take any bid 
from the seller or any person employed bv him. Ab^ sale contravening 
this rule may be treated as fradulent by the buyer. 

Sbc. 23.— [Risk of Loss.} Unless otherwise agreed, the goods remain 
at the seller's risk until the property therein is transferred to the buyer, 
but when the property therein is transferred to the buyer the goods are at 
the buyer's nsk whether deliveiy has been made or not, except that — 

(a) where delivery of the goods has been made to the buyer, or to a 
bailee, in pursuance of the contract, and the property in the goods has 
been retained by the seller or transferred to a banker or other third 
person as security for the performance by the buyer of his obligations 
under the contract, the goods are at the buyer's risk from the time of 
such delivery; 

(b) Where delivery has been delaved through the fault of either buyer 
or seller the goods are at the risk of the party in fault until the contract 
is terminated by a total breach or otherwise, as regards any loss which 
might not have occurred but for such fault. 

Transfer of Title. 

Sec. 24.— [5ate by a Person Not the Ovmer,} (1) Subject to the pro- 
visions of this act, where goods are sold by a person who is not the 
owner thereof, and who does not sell them under the authority or with 
the consent of the owner, the buyer acquires no better title to the goods 
than the seller had, unless the owner of the goods is by his conduct 
precluded from denying the seller's authority to sell. 
- (2) Nothing in this act, however, shall affect — 

(a) The provisions of any factors' acts, recording acts, or any enact- 
ment enablmg the apparent owner of goods to dispose of them as if he 
were the true owner thereof; 

(b) The validity of any contract to sell or sale under any special 
common law or statutory power of sale or under the order of a court of 
competent jurisdiction. 

Sbc. 26.— [Sale by One Having a Voidable Title.} Where the seller of 
goods has a voidable title thereto, but his title has not been avoided at 
the time of the sale, the binrer acquires a good title to the goods, pro- 
vided he buyB them in good faith, for value, and without notice of the 
seller's defect of title. 

Sbc. 2Q.—[Sale by Seller in Possession of Goods Abready Sold.} Where 
a person having sold goods continues in possession of the goods, or of 
negotiable documents of title to the rooos, the delivery or transfer by 
that person, or by an agent acting for him, of the goods or documents of 
title under any sale, pledge, or other disposition uiereof , to any penon 
receiving and paying value for the same in good faith ana without notice 
of the previous sale, shall have the same effect as if the person making 
the delivery or transfer were expressly authorised by the owner of the 
goods to make the same. 

Sic. 27.— iCreditorf^ Rights Against Sold Goods in Seller's Possession.} 
Where a person having sold goods continues in possession of the floods, 
or of negotiable documents of title to the goods, and such retention of 



304 RBPOBT OF OOMMITTBE ON 

possession is fraudulent in fact or is deemed fraudulent under any rule 
of law of the state where the goods are situated, a creditor or creditors of 
the seller may treat the sale as void. 

PART in. 

Perfobmancb of the Contbact. 

Sec. 28. — [Seller Musi Deliver and Buyer Accept Goods."] It is the 
duty of the seller to deliver the goods, and of the buyer to accept and 
pay for them, in accordance with the terms of the contract to sell or 
the sale. 

Sec. 29. — [Delivery and Payment are Concurrent Conditions.] Unless 
otherwise agreed, delivery of the goods and payment of the price are 
concurrent conditions ; that is to say, the seller must be ready and willing 
to give possession of the goods to the buyer in exchange for the price 
and the buyer must be ready and willing to pay the price in exchange for 
possession of the goods. 

Sec. ZO.— [Place, Time and Manner of Delivery.] (1) Whether it is 
for the buyer to take possession of the goods or for the seller to send 
them to the buyer is a question depending in each case on the contract, 
express or implied, between the parties. Apart from any such contract, 
express or implied, or usage of trade to the contrary, the place of 
delivery is the seller's place of business if he have one, and if not, his 
residence; but in case of a contract to sell or a sale of specific goods, 
which to the knowledge of the parties when the contract or the sale was 
made were in some other place, then that place is the place of delivery. 

(2) Where by a contract to sell or a sale the seller is bound to send the 
goods to the buyer, but no time for sending them is fixed, the seller is 
bound to send them within a reasonable time. 

(3) Where the goods at the time of sale are in the possession of a 
third person, the seller has not fulfilled his obligation to deliver to the 
buyer unless and until such third person acknowledges to the buyer that 
he holds the goods on the buyer's behalf; but as against all others than 
the seller the buyer shall be regarded as having received delivery from 
the time when such third person first has notice of the sale. Nothing in 
this section, however, shall afifect the operation of the issue or negotia- 
tion or transfer of any document of title to goods. 

(4) Demand or tender of delivery may be treated as ineffectual unless 
made at a reasonable hour. What is a reasonable hour is a question 
of fact. 

(5) Unless otherwise affreed, the expenses of and incidental to putting 
the goods into a deliverable state must be borne by the seller. 

Sec. Zl.— [Delivery oj Wrong Quantity.] (1) WTiere the seller delivers 
to the buyer a quantity of goods less than he contracted to sell, the 
buyer may reject them, but if the buyer accepts or retains the goods so 
delivered, knowing that the seller is not going to perform the contract 
in full, he must pay for them at the contract rate. If, howevo:, the buyer 
has used or disposed of ^e goods delivered before he knows that the 
seller is not going to perform his contract in full, the buyer shall not be 
liable for more than the fair value to him of the goods so received. 

(2) Where the seller delivers to the buyer a quantity of goods laigar 
than he contracted to sell, the buyer may axscept the goods mcluded in 
the contract and reject the rest, or he may reject the whole. If the buyer 
accepts the whole of the goods so deUvered he must pay for them at the 

^ (3) Where' the seller delivers to the buyer the goods he contracted to 
sell mixed with goods of a different description not included in the con- 



\ 



COMMERCE, TRADE ANP COMMERCIAL LAW. 306 

tract, the buyer may accept the goods which are in accordance with the 
contract and reject tjie rest, or he may reject the whole. 

(4) The provisions of this section are subject to any usage of trade, 
special agreement, or course of dealing between the parties. 

Sec. 32. — {Delivery m InstalmentaJ] (1) Unless otherwise agreed, the 
buyer of goods is not bound to accept delivery thereof by instalments. 

(2) Where there is a contract to sell goods to be delivered by stated 
instalments, which are to be separately ^paid for, and the seller makes 
defective deliveries in respect of one or more instalments, or the buyer 
neglects or refuses to take delivery of or to pay for one or more instal- 
ments, it depends in each case on the terms of the contract and the cir- 
cumstances of the case, whether the breach of contract is so material as to 
justify the injured party in refusing to proceed further and suing for 
damages for breach of the entire contract, or whether the breach is 
severable, giving rise to a claim for compensation, but not to a right to 
treat the whole contract as broken. 

Sbc. dZ.— {Delivery to a Carrier on Behalf of the BuyerJ] (1) Where, 
under the terms of a contract to sell or a sale, or of an offer to buy, the 
seller is authorized or required to send the goods to the buyer, delivery of 
the goods to any carrier, within the express or implied terms of the con- 
tract or offer, for the purpose of transmission to the buyer is deemed to 
be a dehvery of the goods to the buyer, except in the cases provided for 
in Section 20, Rules 5 and 6 or unless a contrary intent appears. 

(2) Unless otherwise authorized by the buyer, the seller must make 
such contract with the carrier on behalf of the buyer as may be reason- 
able, having regard to the nature of the goods and the other circum- 
stances of the case'. If the seller omit so to do, and the goods are lost or 
damaged in course of transit, the buyer may decline to treat the delivery 
to the carrier as a delivery to himself, or may hold the seller responsible 
in damages. 

(3) Unless otherwise agreed, where goods are sent by the seller to the 
buyer under circumstances in which the seller knows or ought to know 
that it is usual to insure, the seller must give such notice to the buyer 
as may enable him to insure them during their transit, and, if the seller 
fails to do so, the goods shall be deemed to be at his risk during such 
transit. 

Sbc. 34. — {Right to Examine the Goods.} (1) Where goods are 
delivered to the buyer, which he has not previously examined, he is not 
deemed to have accepted them unless anci until he has had a reasonable 
opportunity of examining them for the purpose of ascertaining whether 
they are in conformity with the contract. 

(2) Unless otherwise agreed, when the seller tenders delivery of goods 
to the buyer, he is bound, on request, to afford the buyer a reasonable 
opportimity of examining the goods for the purpose of ascertaining 
whether they are in conformity with the contract. 

(3) Where goods are delivered to a carrier by the seller, in accordance 
with an order from or agreement with the buyer, upon the terms that 
the goods shall not be delivered by the carrier to the buyer until he has 
paid the price, whether such terms are indicated by marking the goods 
with the words " collect on dehvery," " C. O. D.," or otherwise, or where 
the buyer has agreed to pay the price on receiving documents of title, 
the buyer is not entitled to examine the goods before payment of the 
price in the absence of agreement permitting such examination. 

Sbc. 35^ — {What Constitutes Acceptance,} The buyer is deemed to 
have accepted the goods when he intimates to the seller that he has 
accepted them, or when the goods have been delivered to him, and he 
does any act in relation to them which is inconsistent with the ownership 



/ 



306 RBPOKT OF qOMMITTBE ON 

of the seller, or when, after the lapse of a reasonable time, he retains the 
goods wiUiout intimating to the seller that he has rejected them. 

Sbg. 36. — [Acceptance Does Not Bar Action for Danuiges.'] In the 
absence of express or implied agreement of the parties, acceptance of the 
goods by the buyer does not discharge the seller from liability in damages 
or other legal remedy for breach of any promise or warranty in the con- 
tract to sell or the sale. But if, after acceptance of the goods, the buyer 
fails to give notice to the seller of the breach of any promise or warranty 
within a reasonable time after the buyer knows, or ought to know of such 
breach, the seller shall not be liable therefor. 

Sec. 37. — [Buyer is Not Bound to Return Goods Wrongly Delivered.] 
Ui^ess otherwise agreed, where goods are delivered to the buyer, and he 
refuses to accept them, having the ri^t so to do, he is not bound to 
return them to the seller, but it is sufQcient if he notifies the seller that he 
refuses to accept them. 

Sec. 38. — [Buyer^s Liability for Failing to Accept Pelivery.} When the 
seller is ready and willing to deliver the goods, and requests the buyer to 
take delivery, and the buyer does not within a reasonable time after such 
request take delivery of the goods, he is liable to the seller for any loss 
occasioned by his neglect or refusal to take delivery, and also for a 
reasonable charge for the care and custody of the goods. If the neglect 
or refusal of the buyer to take delivery amounts to a repudiation or 
breach of the entire contract, the seller dhall have the rights against the 
goods and on the contract hereinafter provided in favor of the seller 
when the buyer is in default. 

Sbg. Z9.-^[F, 0. B. ffiipmenisJ] Unless a contrary intention appears, 
a contract to sell providing for the delivery of goods F. O. B. a named 
place means that the goods are to be put in the poasession of a carrier 
free of charges at that place, for transmission or delivery to the buyer, 
and in the absence of terms inconsistent therewith imposes upon the 
seller: 

(a) The duty of putting the goods in the possession of the carrier and 
of paying all charges of loading or transportation until the goods reach 
the place named ; 

(b) The duty of obtaining from the carrier a bill of lading for the 
^oods, which may, however, if the seller is unpaid, reserve the property 
m him for security as provided in Section 21 ; 

(c) The risk of loss imtil the goods are in the possession of the carrier 
at the named place. 

Such a contract, in the absence of terms unconsistent therewith, im- 
poses upon the buyer: 

(a) The duty of paying the price on performance by the seller of his 
obligations ; 

(b) The risk of loss from the time that the goods are in the possession 
of the carrier at the named place. 

Sbc. 40.— [C. /. F. ShipmentsJ] Unless a contrarv intention appears, a 
contract to sell providing for the shipment of gooas C. I. F. means that 
the goods are to be put in the possession of a carrier for transmission to 
the buyer and that the price to be paid includes in a lump sum the cost 
of the goods, the freight to the place of destination, and the premium for 
insurance of the goods during transit. Such a contract in the absence of 
terms inconsistent therewith imposes upon the seller: 

(a) The duty of putting the goods in the hands of the carrier, and of 
pa3dng all charges of loading and freight to the place of destination; 

(b) The duty of obtaining from the carrier a bill of lading for the 
f^oodis, which may, however, if the seller is unpaid, reserve the property 
m him for security as provided in Section 21 ; 



COMMEKOB, TRADE AND COMMERCIAL LAW. 307 

(c) The duty of obtaining a policy of insurance, insuring the goocbs 
during transit, and paying the premium therefor; 

(d) The duty of tendering to the buyer, on condition of receiving con- 
current payment of the price. (1) a bill of lading, which by indorsement 
or otherwise makes the gooas deliverable at destination to the buyer; 

(2) a policy of insurance, with premium paid, under which payment for 
loss or injury to the gooos during transit is made payable to the buyer ; 

(3) a receipt from the carrier showing that the freight has been prepaid 
or payment thereof secured. 

(e) The risk of loss or injury to the goods until they have been 
delivered to the carrier and covered by insurance. 

Such a contract in the absence of terms inconsistent therewith, im- 
poses upon the buyer: 

(a) The duty of paying the price on tender by the seller of the docu- 
ments due from him as above stated; 

(b) The risk of loss from the time that the goods have been delivered 
to the carrier and covered by insurance. 

Sec. 41. — [Interpretation of Other Mercantile Contracts.} Unless a 
contrary intention appears, a contract to sell providing for the delivery 
of goods F. A. S. a vessel at a named port means that the goods are to be 
deCvered alongside the vessel free of charges, and imposes upon the 
seller the same obligations as a contract to deliver the goods F. 0. B. the 
vessel at the named port except that the seller does not assume the duty 
or expense of loading after the goods have been delivered to the carrier 
alongside the vessel. 

Unless a contrary intention appears a contract to sell goods C. F. or 
C. A. F. or C. and F. means that the eoods are to be put in the posses- 
sion of a carrier for transmission to the buyer and that the price to be 
paid includes in a lump sum the cost of the goods and the freight to 
the place of destination. Such a contract imposes upon the seller in the 
absence of terms inconsistent therewith the same duties as a G.I.F. 
contract except that of obtaining insurance. The risk is on the buyer 
from the time of shipment and the price is payable on tender of a 
proper bill of lading and receipt showing that tne freight has been pre- 
paid or its payment secured. 

A contract to sell goods C.A.C. (that is for a price including in a 
lump sum the cost of the goods and all charges to the place of destina- 
tion) has the same effect as a contract to sell goods G. F., except not 
only freight but all charges on the soods to the place of destination 
must be paid or their payment securea by the seller. 

Sec. 42.— [FatZure of Carrier to Provide Means of Transportation.'] 
In all cases where the contract provides that goods shall be transported 
by a specific carrier, or is based on the express or tacit assumption that 
they will be so transported, if that carrier fails when duly requested, and 
without legal liability therefor, to furnish cars for loading the goods, or 
means of transporting the goods to the named place, the seller is not 
liable to the buyer for delay in performance or for non-performance of 
the contract thus caused. 

PART IV. 

Rights of Unpaid Seller Against the Goods. 

Sec. ^.—[Definition of Unpaid Seller.} (1) The seller of goods is 
deemed to be an unpaid seller within the meaning of this act — 

(a) When the whole of the price has not been paid or tendered; 

(b) When a bill of exchange or other n^otiable instrument has been 
received as conditional pasrment, and the condition on which it was 



308 BEPOBT OF COMMITTEE ON 

received has been broken by reason of the dishonor of the instrument, 
the insolvency of the buyer, or otherwise. 

(2) In this part of this act the term " seller " includes an agent of the 
seller to whom the bill of lading has been indorsed, or a consignor or 
agent who has himself paid, or is directly responsible for, the price, or 
any other person who is in the position of a seller. 

Sbc. 44. — [Remedies of an Unpaid SeUerJ] (1) Subject to the pro- 
visions of this act, notwithstanding that the property in the goods may 
have passed^ the buyer, unpaid seller of goods, as such, has — 

(a) A lien on the goods or right to retain them for the price while he is 
in possession of them; 

(b) In case of the insolvency of the buyer, a right of stopping the 
goods in transitu after he has parted with the possession of them ; 

(c) A right of resale as limited by this act ; 

(d) A right to rescind the sale as limited by this act. 

(2) Where the property in goods has not passed to the buyer, the 
unpaid seller has, in addition to his other remedies, a right of with- 
holding delivery similar to and coextensive with his rights of ^lien and 
stoppage in transitu where the property has passed to buyer. 

Unpaid Seller^s Lien. 

Sec. 45. — [When Right of Lien May be Exercised.] (1) Subject to 
the provisions of this act, the unpaid seller of goods who is in possession 
of them is entitled to retain possession of them until payment or tender 
of the price in the following cases, namely: 

(a) Where the goods have been sold without any stipulation as to 
credit ; 

(b) Where the goods have been sold on credit, but the term of credit 
has expired; 

(c) Where the buyer becomes insolvent. 

(2) The seller may exercise his right of lien notwithstanding that he is 
in possession of the goods as agent or bailee for the buyer. 

Sec. 46. — [Lien After Part Delivery.] Where an unpaid seller has made 
part delivery of the goods, he may exercise his right of lien on the 
remainder, unless such part delivery has been made under such circum- 
stances as to show an intent to waive the lien or right of retention. 

Sec. 47. — [When Lien is Lost.] (1) The unpaid seller of goods loses his 
lien thereon — 

(a) When he dehvers the goods to a carrier or other bailee for the 
purpose of transmission to the buyer without reserving the property in 
the goods or the right to the possession thereof; 

(b) When the buyer or his agent lawfully obtains possession- of the 
goods; 

(c) By waiver thereof. 

(2) The unpaid seller of goods, having a lien thereon, does not lose 
his lien by reason only that he has obtained judgment or decree for the 
price of the goods. 

Stoppage in Transitu. 

Sbc. 48. — [SeUer May Stop Goods on Buyer's Insolvency.] Subject to 
the provisions of this act, when the buyer of goods is or becomes in- 
solvent, the unpaid seller who has parted with the possession of the goods 
has the right of stopping them in transitu; that is to say, he may resuzne 
possession of the goods at any time while they are in transit, and he wiU 
then become entitled to the same rights in regard to the goods as he 
would have had if he had never parted with the possession. 

Sec. AQ.--[When Goods Are in Transit.] (1) Goods are in transit 
within the meaning of Section 48^ 



COMKEECE, TEADB AND CO^KEBCIAL I«AW. 309 

(a) From the time when they are delivered to a carrier by land or 
water, or to any other bailee, for the purpose of transmission to the 
buyer, until the buyer, or his agent in that behalf, takes delivery of them 
from such carrier or other bailee; 

(b) If the goods are rejected by the buyer, and the carrier or other 
bailee continues in possession of them, even if the seller has refused to 
receive them back. 

(2) Goods are no longer in transit within the meaning of Section 48 — 

(a) If the buyer, or his agent in that behalf, obtains deliveiy of the 
goods at or before their arrival at the appointed destination ; 

(b) If, after the arrival of the goods at the appointed destination, the 
carrier or other bailee acknowledges to the buyer or his agent that he 
holds the goods on his behalf and continues in possession of them as 
bailee for the buyer or his agent; and it is immaterial that a further 
destination for the goods may have been indicated by the buyer; 

(c) If the carrier or other bailee wrongfully refuses to deliver the 
goods to the buyer or his agent in that behalf. 

(3) If goods are delivered to a ship chartered by the buyer, it is a 
question depending on the circumstances of the particular case, whether 
diey are in the possession of the master as a carrier or as agent of the 
buyer. 

(4) If part delivery of the goods has been made to the buyer, or his 
agent in that behalf, the remainder of the goods may be stopped in 
transitu, unless such part delivery has been made under such circum- 
stances as to show an agreement with the buyer to give up possession 
of the whole of the goods. 

Sbc. 60. — [Ways of Exercising the Right to 8top,1 (1) The unpaid 
seller may exercise his righH of stoppage in transitu either by obtaining 
actual possession of the goods or by giving notice of his claim to the 
carrier or other bailee in whose possession the goods are. Such notice 
may be |[iven either to the person in actual possession of the goods or to 
his principal. In the latter case the notice, to be effectual, miist be given 
at such time and under such circumstances that tiie principal, by the 
exercise of reasonable diligence, may prevent a delivery to the Duyer. 

(2) When notice of stoppage in transitu is given by the seller to the 
carrier, or other bailee in possession of the goods, he must redeliver the 
goods to, or according to the directions of, the seller. The expenses of 
such redelivery must be borne by the seller. If, however, a negotiable 
document of title representing the goods has been issued oy the carrier 
or other bailee, he shall not be obliged to deliver or justified in deliver- 
ing the goods to the seller unless such document is first surrendered for 
cancellation. 

Resale by the Seller, 

Sec. 51.— [When and How Resale May he Made.^ (1) Where the 
goods are of a perishable nature, or where the seller expressly reserves 
the right of resale in case the buyer should make default, or where the 
buyer has repudiated the contract to sell or sale, or has been in default 
in the payment of the price an unreasonable time, an unpaid seller 
having a right of lien or having stopped the goods in transitu may resell 
the goods. He shall not thereafter be liable to the original buyer upon 
the contract to sell or the sale or for any profit made by such resale, but 
may recover from the buyer damages for any loss occasioned by the 
breach of the contract or the sale. 

(2) Where a resale is made, as authorized in this section, the buyer 
thereunder acquires a good title as against the original buyer. 

(3) It is not essential to the validity of a resale that notice of an inten- 
tion to resell the goods be given by the seller to the original buyer. But 



310 BEPORT OP COMMITTEE ON 

where the right to resell is not based on the perishable nature of the 
goods or upon an express i}rovision of the contract or the sale, the giving 
or failure to give such notice shall be relevant in any issue involving the 
question whether the buyer had been in default an unreasonable time 
before the resale was made. 

(4) It is not essential to the validity of a resale that notice of the time 
and place of such resale should be given by the seller to the original 
buyer. 

(5) The seller is bound to exercise reasonable care and judgment in 
making a resale, and subject to this requirement may make a resale either 
by public or private sale. 

Rescission by the Seller. 

Sec. 61. —[When and How the Seller May Rescind the Sale J] (1) An 
unpaid seller having a right of lien or having stopped the goods in 
transitu, may rescind the transfer of title and resume the property in the 
goods, where he expressly reserved the right to do so in case the buyer 
&ould make default, or where the buyer has been in default in the pay- 
ment of the price an unreasonable time. The seller shall not thereafter 
be liable to the buyer upon the contract to sell or the sale, but may 
recover from the buyer damages for any loss occasioned by the breach 
of the contract or the sale. 

(2) The transfer of title shall not be held to have been rescinded by an 
unpaid seller until he has manifested by notice to the buyer or by some 
other overt act an intention to rescind. It is not necessaiy that such 
overt act should be communicated to the buyer, biit the giving or failure 
to give notice to the buyer of the intentioikto rescind suall be relevant 
in any issue involving the Question whether the buyer had been in 
default an unreasonable time before the right of rescission was asserted. 

Sec. 62.-^[Effect of Sale of Goods Subject to Lien or Stopp<ige in 
Transitu.] Subject to the provisions of this act, the unpaid seller's risht 
of lien or stoppage in transitu is not affected by any sale, or other ais- 
position of the goods which the buyer may have made, unless the seller 
has assented thereto. 

If, however, a negotiable document of title has been issued for goods, 
no seller's lien or right of stoppage in transitu shall defeat the right of 
any purchaser for value in good faith to whom such document has been 
negotiated, whether such negotiation be prior or subsequent to the 
notification to the carrier or other bailee who issued such document, of 
the seller's claim to a lien or right of stoppage in transitu, 

PART V. 

Actions fob Bbkach or thb Ck>NTBACT. 

Remedies of the Seller, 

Sec. 53. — [Action for the Price.] (1) Where, under a contract to sell 
or a sale, the property in the goods has passed to the buyer, and the 
buyer wrongfully neglects or refuses to pay for the goods according to 
the terms of the contract or the sale, the seller may maintain an action 
against him for the price of the goods. 

(2) Where the seller has retained the property in the goods merely for 
securing payment of the price, he may, after offerinj; to the buyer to 
.surrender such property interest on condition of receiving the price in 

accordance with the terms of the contract, maintain an action for the 
price of the goods. 

(3) Where, imder a contract to sell or a sale, the price is payable on a 
day certain, irrespective of delivery or of transfer of title, and the buyer 



GOMMiERCBy TBADE AND GOHISEBCIAL LAW. 311 

wrongfully neglects or refuses to pay such price, the seller may maintain 
an action for the price, although the property in the goods has not 
passed, and the goods have not been appropriated to the contract. But 
it shall be a defense to such an action that the seller at any time before 
judgment in such action has manifested an inability to perform the con- 
tract or the sale on his part or an intention not to perform it. 

(4) Although the property in the goods has not passed, if they cannot 
readily be resold for a reasonable price, and if the provisions of Section 
54 (4) are not applicable, the seller may offer to deliver the goods to the 
buyer, and, if the buyer refuses to receive them, may notity the buyer 
that the goods are thereafter held by the seller as bailee for the buyer. 
Thereafter the seller may treat the goods as the buyer's and may main- 
tain an action for the price. 

Etac. 64. — [Action for Damages for Non-Acceptance of the Goods.] 
(1) Where the buyer wrongfully n^lects or refuses to accept and 'pay 
for the goods, the seller may maintain an action against him for damages 
for non-acceptance. 

(2) The measure of damages is the estimated loss directly and natur- 
ally resulting, in the ordinary course of events, from the buyer's breach 
of contract. 

(3) Where there is an available market for the goods in question, the 
measure of damages is, in the absence of special circumstances showing 
proximate damage of a different amount, the difference between the con- 
tract price and the market or current price at the time or times when the 
goods ought to have been accepted, or, if no time was fixed for accep- 
tance, then at the time of the refusal to accept. 

(4) If, while labor or expeiise of material amount is neoessaiy on the 
part of the seller to enable bim to fulfill his obligations under the ccm- 
tract to sell or the sale, the buyer repudiates the contract or the sale, or 
notifies the seller to proceed no further therewith, the buyer diall be 
liable to the seller for no greater damages than the seller would have 
suffered if he did nothing towards carrying out the contract or the sale 
after receiving notice of the buyer's repuoiation or countermand. The 
profit the seller would have made if the contract or the sale had been fully 
performed shall be considered in estimating such damages. 

8bg. 65. — [When Seller May Rescind Contract or Sale,} Where the 
goods have not been delivered to the buyer, and the huy&r has repudiated 
the contract to sell or sale, or has manifested his inabiuty to penorm his 
obligations thereunder, or has conmiitted a material breach thereof, the 
seller may totally rescind the contract or the sale by giving notice of his 
election so to do to the buyer. If the seller elects this course rather than 
that provided for in the preceding section, he can maintain no action 
against the buyer, for his failure to accept the goods. 

Remedies of the Buyer. 

Sbc. 66. — [Action for Converting or Detaining Goods,] Where the 
property in the goods has passed to the buver and the seller wrongfully 
neglects or refuses to deliver the goods, the buyer may maintain any 
action allowed by law to the owner of goods of similar kind when wrong- 
fully converted or withheld. 

Sbc. b7,— [Action for FaHing to Deliver Goods.} (1) Where the 
property in iLe goods has not paas^ to the buyer, and the seller wron^ 
lulb^ neglects or refuses to deliver the goods, the buyer msiy maintam 
an action against the seller for damages for non-delivery. 

(2) The measure of damages is the loss directly and naturally resulting 
in the ordinary course of events, from the seller's breach of contract. 

(3) Where there is an available market for the goods in question, the 
measure of damages, in the absence of special circumstances showing 



V 



312 BEPORT OP COMMITTEE ON 

proximate damages of a different amount, is the difference between the 
contract price and the market or current price of the goods at the time 
or times when they ought to have been dehvered, or, if no time was fixed, 
then at the time of the refusal to deliver. 

Sec. 58.— [Specific PerformanceJ] Where the seller has broken a con- 
tract to deliver specific or ascertained goods, a court having the powers 
of a court of equity may, if it thinks fit, on the application of the buyer, 
by its judgment or decree direct that the contract shall be performed 
specifically, without giving the seller the option of retaining the goods on 
payment of damages. The judgment or decree may be unconditional, 
or upon such terms and conditions as to damages, payment of the price 
and otherwise, as to the court may seem just. 

Sbc. 59,— [Remedies for Breach of Warranty.l (1) Where there is a 
breach of warranty, by the seller, the buyer may, at his election — 

(a) Accept or keep the goods and set up against the seller, the breach 
of warranty by way of recoupment in diminution or extinction of the 
price ; 

(b) Accept or keep the goods and maintain an action against the seller 
for damages for the breach of warranty; 

(c) Refuse to accept the goods, if the property therein has not passed, 
and maintain an action against the seller for damages for the breach of 
warranty ; 

(d) Rescind the contract to sell or the sale and refuse to receive the 
goods, or if the goods have already been received, return them or offer to 
return them to the seller, and recover the price or any part thereof which 
has been paid. 

(2) When the buyer has claimed and been sranted a remedy in any 
one of these ways, no other remedy can thereafter be granted. 

(3) Where the goods have been delivered to the buyer, he cannot 
rescind the sale if he knew of the breach of warranty when he accepted 
the goods, or if he fails to notify the seller within a reasonable time of 
the election to rescind, or if he fails to return or to offer to return the 
goods to the seller in substantially as good condition as they were in at 
the time the property was transferred to the buyer. But if deterioration 
or injury of the goods is due to the breach of warranty, such deterioration 
or injury shall not prevent the buyer from returning or offering to return 
the goods to the seller and rescincQng the sale. 

(4) Where the buyer is entitled to rescind the sale and elects to do so, 
the buyer shall cease to be liable for the price upon returning or offering 
to return the goods. If the price or any part thereof has luready been 
paid, the seller shall be ^able to repay so much thereof as has been paid, 
concurrently with the return of the goods, or immediately after an offer 
to return the goods in exchange for repayment of the price. 

(5) Where die buyer is entitled to rescind the sale and elects to do so, 
if the seller refuses to accept an offer of the buyer to return the goods, 
the buyer shall thereafter be deemed to hold the goods as bailee for the 
seller, but subject to a lien to secure the repa3rment of any portion of 
the price which has been paid, and with the remedies for the enforcement 
of such lien allowed to an unpaid seller by Section 44. 

(0) The measure of damages for breach of warranty is the loss directly 
and naturally resulting, in the ordinary course of events, from the breach 
of warranty. 

(7) In the case of breach of warranty of quality, such loss, in the 
absence of special circumstances showing proximate damage of a different 
amount, is the difference between the value of the goods at the time of 
delivery to the buyer and the value they would have had if they had 
answered to the warrant/. 



COMKERGE> TRADE AND COMMERCIAL LAW. 313 

Sbc. 60. — [Interest and Special DamagesJl Nothing in this act shall 
affect the right of the buyer or the seller to recover intereet or special 
damages in any case where by law interest or special damages may be 
recoverable, or to recover money paid where the consideration for the 
payment of it has failed. 

PART VI. 

Intebfbbtation. 

Sec. 61.-— [Variaa'on of Implied Obligations.! Where any right, duty 
or liability would arise under a contract to sell or a sale by implication 
of law, it may be negatived or varied by express agreement or by the 
course of d^iiing between the parties, or by custom, if the custom be 
such as to bind both parties to the contract or the sale. 

Sbc. ii2.-^lRights May be Enforced by Actton."] Where any right, 
duty or liability is declared by this act, it may, unless otherwise by this 
act provided, be enforced by action. 

Sbc. eZ.-^lRule for Cases Not Provided for by this Act.l In apy case 
not provided for in this act, the rules of law and equity, including the 
law merchant, and in particular the rules relating to the law of principal 
and agent and to the effect of fraud, misrepresentation, duress or coercion, 
mistake, bankruptcy, or other invalidating cause, shall continue to apply 
to contracts to sell and to sales of goods. 

Sbc. 64. — [Interpretation Shall Give Effect to Purpose of Unity,'] This 
act shall be so interpreted and construed as to effectuate its general 
purpose to unify the law of sales and contracts to sell in commerce 
among the states and with foreign nations. 

Sec. 65.— [ProvmoTW Not Applicable to Mortgages,1 The provisions 
of this act relating to contracts to sell and to sales do not apply, unless 
so stated, to any transaction in the form of a contract to sell or a sale 
which is intended to operate by way of mortgage, pledge, charge, or other 
security. 

Sec. e6.— [Definitions.'} (1) In this act unless the context or subject 
matter otherwise requires — 

" Action " includes counterclaim, set-off and suit in equity. 

"Buyer" means a person who buys or agrees to buy goods or any 
legal successor in interest o^such person. 

"Defendant'' includes a plaintiff against whom a right of set-off or 
counterclaim is asserted. 

"Delivery" means voluntary transfer of possession from one person 
to another. 

" Divisible contract to sell or sale " means a contract to sell or a "sale 
in which by its terms the price for a portion or portions of the goods less 
than the whole is fixed or ascertainable by computation. 

" Document of title to goods " includes any bill of lading, dock warrant, 
warehouse receipt or order for the delivery of ^oods, or any other docu- 
ment used in the ordinary course of business m the sale or transfer of 
goods, as proof of the possession or control of the goods, or authorizing or 
purporting to authorize the possessor of the document to trfmsfer or 
receive, either by indorsement, or by delivery, goods represented by 
such document. 

A document of title in which it is stated that the goods referred to 
therein will be delivered by a bailee stated to be in possession of them to 
the bearer, or to the order of any person named in such document is a 
negotiable document of title. 

" Fault " means wrongful act or default. 



314 REPORT OP COMMITTEE ON 

" Fungible goods " means gcx>ds of which any unit is from its nature 
or by mercantile usage treated as the equivalent of any other unit. 

" Future goods " means goods to be manufactured or acquired by the 
seller after the making of the contract of sale. 

" Goods " include all chattels personal other than things in action and 
money. The term includes emblements, industrial erowing crops, and 
things attached to or forming part of the land which are agreea to be 
severed before sale or under the contract of sale. 

** Order '' in sections of this act relatihg to documents of title means 
an order by indorsement on the document. 

'' Person " includes a corporation or partnership or two or more persons 
having a joint or common interest. 

" Plaintiff " includes defendant asserting a right of set-off or counter- 
claim. 

" Property " means the general property in goods, and not merely a 
special property. 

" Purchaser " includes mortgagee and pledgee. 

'' Purchases " includes taking as a mortgagee or as a pledgee. 

" Quality of goods " includes their state or condition. 

'' Sale " includes a bargain and sale as well as a sale and delivery. 

*' Seller " means a person who sells or agrees to sell goods, or any legal 
successor in interest of such person. 

'' Specific goods " means goods identified and agreed upon at the time 
a contract to sell or sale is made. 

''State " includes any territory, district, insular possession, or isthmian 
possession. 

" Value " is any consideration suj£cient to support a simple contract. 
An antecedent or pre-existing claim, whether for money or not, consti- 
tutes value where goods or documents of titles are taken either in satis- 
faction thereof or as security therefor. 

(2) A thing is done " in good faith " within the meaning of this act 
when it is in fact done honestly, whether it is done neghgently or not. 

(3) A person is insolvent within the meaning of this act who either 
has ceased to pay his debts in the ordinary course of business or cannot 
pay his debts as th^ become due, whether he has committed an act of 
bankruptcy or not, and whether he is insolvent within the meaning of 
the federal bankruptcy law or not. 

(4) Goods are in a " deliverable state " wi/iiin the meanins of this act 
when they are in such a state that the buyer would, under me contract, 
be bound to take delivery of them. 

Sbo. 67. — [Act Not Applicable to Antecedent Transactions. 1 The pro- 
visions of this act do not apply to sales or contracts to sell entered mto 
or based on offers made prior to the date when this act takes effect. 

Sec. 68. — [// Parts of Act are Unconstitutional, Other Parts Stand.] 
The provisions and each part thereof and the sections and each part 
thereof of this act are independent and several, and the declaring of any 
provision or part thereof or provisions or part thereof, or section or part 
thereof or sections or part thereof, unconstitutional, ^all not impair or 
render unconstitutional any other provision or part thereof or section or 
part thereof. 

Sbc. 69. — [Inconsistent Legislation Repealed."] All acts or parts of acts 
inconsistent with this act are hereby repealed. 

Sbsc. 70.— [Time When the Act Takes Effect.] This act shall take effect 
on the first day of January next after its passage. 

Sbc. 71. — [Name of Act.] This act may be cited as the Federal Sales 
Act. 



COMMERCE, TRADE AND COMMERCIAL LAW. 315 



APPENDIX B, 

REVISED DRAFT OP UNITED STATES 
ARBITRATION ACT 

As APPROYEa) BY THE COMMITTEE ON COMMERCE, TrADE AND 

Commercial Law, American Bar 
Association (1922) 

A BILL 

To MaKB VaUD and EnFORGBABLB WbITTBN PbOVISIONS OB AOBBBMBNTS 

FOB Abbitration OF DiapuTsa Abising Ottt of Contbacts, Mabitimb 

TbANBACTIONB OB CoMMERCB AmONQ THB StATBS OB T&BBTrOBIBS OB 
WITH FOBBIQN NATIONS. 

Be U enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled: 

Section 1. " Maritime transactions/' as herein defined means charter 
parties, bills of lading of water carriers, agreements relating to wharfage, 
supph'es furnished vessels or repairs to vessels, seamen's wages, collisions, 
or any other matters in foreign or interstate commerce whidi, if the sub- 
ject of controversy, would be embrac«i within admiralty jurisdiction; 

commerce" as herein defined means commerce among tiie several 
states or with foreign nations, or in any territory of the United States 
or in the District of Columbia, or between any such territory and 
another, or between any such territory and any state or foreign nation, 
or between the District of Columbia and any state or territory or 
foreign nation. 

Sbc. 2. A written provision in any contract or maritime transaction or 
transaction involving commerce to settle by arbitration a controversy 
thereafter arising between the parties out of such contract or transaction 
or the refusal to perform the whole or any part thereof or an agreement 
in writing to submit to arbitration an existing controversy arising out of 
such a contract, transaction or refusal shall be valid, enforceable and 
irrevocable, save upon such grounds as exist at law or in equity for the 
revocation of any contract. 

Sbc. 3. If any suit or proceeding be brought in any of the courts of 
the United States upon $ny issue referable to arbitration under an 
agreement in writing, the court in which such suit is pending, upon being 
satisfied that the issue involved in such suit or proceeding is referable 
to arbitration under such an agreement, shall stay the trial of the action 
until such arbitration has been had in accordance with the terms of the 
agreement providing tiie applicant for the stay is not in default in pro- 
ceeding vntn such arbitration. 

Sec. 4. A party aggrieved by the failure, neglect or refusal of another 
to perform under an agreement for arbitration which is in writing may 
petition any court of the United States which, save for such afip-eement, 
would have jurisdiction under the Judicial Code at law, in equity or in 
admiralty of the subject matter of a suit arising out of the controverQr 
between the parties, for an order directing that such arbitration proceed 
in the manner provided for in such agreement. Five days' notice in 
writing of such application shall be served upon the party in default. 
Service thereof shall be made in the nianner provided by law for the 
service of summary process in the jurisdiction in which the proceeding is 
brought. The court shall hear the parties, and upon being satisfied that 



316 REPORT OP COMMITTEE ON ^ 

the making of the agreement for arbitration or the failure to comply 
therewith is not in issue, the court shall make an order directing the 
parties to proceed to arbitration in accordance with the terms of the 
agreement. If the making of the agreement or the default be in issue, 
the court shall proceed summarilv to the trial thereof. If no jury trial 
be demanded by the party in default, or if the matter in dispute is 
within admiralty jurisdiction, the court shall hear and determine such 
issue. Where such an issue is raised, the party alleged to be in default 
may, except in cases of admiralty^ on or before the return day of the 
notice of application, demand a jury trial of such issue, and if such 
demand be made, the court shall make an order referring the issue or 
issues to a jury in the manner provided by law for referring to a jury 
issues in an equity action or may specially call a jury for that purpose. 
If the jury find that no ag[reement in writing for arbitration was made 
or that there is no default m proceeding thereunder the proceeding shall 
be dismissed. If the jury find that an agreement for arbitration was 
made in writing and that there is a default in proceeding thereunder, the 
court shall make an order summarily directing the parties to proceed 
with the arbitration in accordance with the terms thereof. 

Sec. 5. If in the agreement provision be made for a method of naming 
or appointing an arbitrator or arbitrators or an iuni)ire, such method 
shall be followed ; but if no method be provided therein, or if a method 
be provided and any party thereto shall fail to avail himself of such 
metnod, or for any other reason there shall be a lapse in the naming of 
an arbitrator or arbitrators or umpire, or in filhng a vacancy, theki, 
upon application by either party to the controversy, the court shall 
designate and appoint an arbitrator or arbitrators or umpire, as the case 
may require, wno shall act under the said agreement with the same 
force and effect as if he or they had been specifically named therein ; and 
imlesB otherwise provided the arbitration shall be by a single arbitrator. 

Sec. 6. Any application to the court hereunder shall be made and 
heard in the manner provided b^ law for the making and hearing of 
motions, except as otherwise herein expressly provided. 

Sec. 7. The arbitrators selected either as prescribed in this act or 
otherwise, or a majority of them, may summon in writing any person 
to attend before them or any of them as a witness and in a proper case 
to bring with him or them a book or paper. The fees for such atten- 
dance shall be the same as the fees of witnesses before masters of tiie 
United States courts. Said summons shall isBue in the name of the 
arbitrator or arbitrators, or a majority of them, and shall be signed by 
the arbitrators, or a majority of them, and shall be directed to the said 
person and shall be served in the same manner as subpoenas to testify 
oefore the coiul; ; if any person or persons so summoned to testify shall 
refuse or neglect to obey said summons, upon petition the United States 
Court in and for the district in which such arbitrators, or a majority 
of them, are sitting may compel the attendance of such person or persons 
before said arbitrator or arbitrators, or punish said person or persons for 
contempt in the same manner now provided for the attendance of wit- 
nesses or the punishment of them in the courts of the United States. 

Sec. 8. If the basis of jurisdiction be diversity of citizenship between 
citizens of several states or one of the parties be a foreign state, citiien 
or subject, the district court or courts which would have jurisdiction if 
the matter in controvert exceeded, exclusive of interest and costs, the 
sum or value of three thousand dollars, shall have jurisdiction to pro- 
ceed hereunder notwithstanding the amount in controvert is unascer- 
tained or is to be determined by arbitration. 

Sec. 9. If the baais of jurisdiction be a cause of action otherwise 
justiciable in admiralty, then, notwithstanding anything herein to the 



COMMERCE, TBADB. AND COMMERCIAL LAW. 317 

contraiy, the party claiming to be aggrieved may begin his proceeding 
hereunder by libel and seizure of the vessel or other property of the 
other party according to the usual course of admiralty proceedings, 
and the court shall then have jurisdiction to direct the parties to 
proceed with the arbitration and shall retain jurisdiction to enter its 
decree upon the award. 

Sbo. 10. If the parties in their agreement have agreed that a 
judgment of the court shall be entered upon the award made pursuant to 
the arbitration, and shall specify the court, then at any time within one 
year after the award is made, which award must be in writing and 
acknowledged or proved in like manner as a deed for the conveyance 
of real estate, and delivered to one of the parties or his attorney, any 
party to the arbitration may apply to the court so specified for an 
order confirming the award and thereupon the court must grant such an 
order, unless the award is vacated, modfied or corrected as prescribed in 
the next two sections. If no court is specified in the agreement of the 
parties, then such application may be made to the United States court 
m and for the district within which such award was made. Notice of 
the motion must be served upon the adverse party or his attorney as 
prescribed by law for service of notice of motion in an action in the same 
court. 

Sec. 11. In either of the following cases, the United States court in 
and for the district wherein the award was made may make an order 
Vacating the award, upon the application of any party to the arbitration: 

(a) Where the award was procured by corruption, fraud or undue 
means. 

(b) Where there was evident partiality or corruption in the arbitrators, 
or either of them. 

(c) Where the arbitrators were guilty of misconduct, in refusing to 
postpone the hearing, upon sufficient cause shown, or in refusing to hear 
evidence, pertinent ana material to the controversy; or of any other 
misbehavior, by which the rights of any party have been prejudiced. 

(d) Where the arbitrators exceeded their powers, or so imperfectly 
executed them, that a mutual, final, and definite award, iipon the subject 
matter submitted, was not made. 

Where an award is vacated and the time, within which the agreement 
required the award to be made, has not expired, the court may in its 
discretion direct a rehearing by the arbitrators. 

Sec. 12. In either of the following cases* the United States Comt in 
and for the district wherein the award was made may make an order 
modifying or correcting the award, upon the application of any party 
to the arbitration: 

(a) Where there was an evident miscalculation of figures, or an 
evident mistake in the description of any person, thing or property, 
referred to in the award. 

(b) Where the arbitrators have awarded upon a matter not submitted 
to them, unless it is a matter not affecting the merits of the decision 
upon the matters submitted. 

(c) Where the award is imperfect in a matter of form, not affecting 
the merits of the controvert. 

The order may modify and correct the award, so a3 to effect the 
intent thereof, and promote justice between the parties. 

Sec. 13. Notice of a motion to vacate, modify or correct an award, 
must be served upon the adverse party or his attorney, within three 
months after the award is filed or delivered as prescribed by law for 
service of notice of a motion in an action. For the purposes of the motion 
any judge who might make an order to stay the proceedings, in an action 
brought in the same court, may make an order to be served with the 



318 REPORT OF COM^CITTBE ON 

notice of motion, staying the proceedings of the advene party to enforce 
the award. 

Sec. 14. Upon the granting of an order, confirming, modifying or 
correcting an award, judgment may be entered in conformity therewith 
but no exceptions shall oe taken, but an appeal may be taken from 
such order or judgment as hereinafter set forth. 

Sec. 15. The party moving for an order confirming, modifying or cor- 
recting an award shall, at the time such order is filed with the clerk for 
the entry of judgment thereon, also file the following papers with the 
clerk: 

(a) The agreement; the selection, or appointment, if any, of an 
additional arbitrator, or umpire ; and each written extension of the time, 
if any, within which to make the award. 

(b) The award. 

(c) Each notice, affidavit or other paper, used upon an application to 
confirm, modify, or correct the award, and a copy of each order of the 
court, upon such an application. 

The judgment may be docketed, as if, it was rendered in an action. 

Sec. 16. The judgment so entered has the same force and effect, in 
all respects, as, and is subject to all the provisions of law relating to 
a judgment in an action; and it may be enforced, as if it had been 
rendered in an action in the court in which it is entered. 

Sec. 17. An appeal may be taken from an order vacating an award, or 
from a judgment entered upon an award, as from an order or judgment 
in an action. 

Sec. 18. This act may be referred to as " The United States Arbitra- 
tion Act." 

Sec. 19. All acts and parts of acts inconsistent with this act are hereby 
repealed, and this act shall take e£fect on and after the first day of 
January next after its enactment ; but shall not apply to contracts made 
prior to the taking e£fect of this act. 



APPENDIX C. 

PROPOSED UNIFORM ACT FOR COMMERCIAL 

ARBITRATION 

As Approved by thb Committee on Commerce^ Trade and 

Commercial Law of the American Bar 

aj3s00iati0n (1922) 

AN ACT 
Concerning Arbitration and Awards. 
Be it enacted by the Senate and General Assembly of the Statg of 



1. A provision in a written contract to settle by arbitration a con- 
troversy thereafter arising out of the contract or the refusal to per- 
form the whole or any part thereof or an agreement in writing to sub- 
mit an existing controvert^ to arbitration pursuant to section two 
hereof^ shall be valid, enforceable and irrevocable, save upon such 
grounds as exist at law or in equity for the revocation of any contract. 

2. Save in the case of an infant, or a person incompetent to manage 
his affairs, two or more persons may agree in writing to submit, to the 



OOMMEROE, TBADB AND GOMKBBCIAL LAW. 319 

arbitration of one or more arbitrators, any controversy existing between 
them at. the time of the agreement to submit which arises out of a 
contract, or the refusal to perform the whole or any part thereof, or 
the violation of any other obligation. They ma^ also so agree that a 
judgment of a court of record, specified in the wnting, shall be rendered 
upon the award, made pursuant to the submission. If the court is thus 
specified, th^y may also specify the county in which the judgment shall 
be entered. If the writing does not specify the county, the judgment 
may be entered in any county. 

3. A party aggrieved by the failure, neglect or refusal of another to 
perform under an agreement in writing providing for arbitration, may 
petition the Court, for an order directing that such arbitra- 
tion proceed in the manner provided for in such agreement. Five days' 
notice in writing of such application shall be served upon the party in 
default. Service thereof shall be made in the manner provided by law 
for service of a summons. The court shall hear tne parties, and 
upon being satisfied that the making of the agreement or the failure 
to comply therewith is not in issue, the court hearing such application, 
shall make an order directing the parties to proceed to arbitration in 
accordance with the terms of the agreement. If the making of the 
agreement or the default be in issue, the court, or the justice thereof, 
shall proceed summarily to the trial thereof. If no jury trial be 
demanded by the party in default the court shall hear and determine 
such issue. Where such an issue is raised, the party alleged to be in 
default ma:^, on or before the return day of the notice of application, 
demand a jury trial of such issue, and if such demand be made, the 
court shall niake an order referring the issue or issues to a jury 
in the manner provided by law for referring to a jury issues in an 
equity action, or may specially call a jui^ for that purpose. If the jury 
find that no a^eement in writing providing for arbitration was made 
or that there is no default in proceeding thereunder, the proceeding 
shall be dismissed. If the jury find that a written provision for arbitra- 
tion was made and that there is a default in proceeding thereunder, the 
court shall make an order summarily directing the parties to proceed 
with the arbitration in accordance with the terms thereof. 

4. If, in the agreement, provision be made for a method of naming 
or appointing an arbitrator or arbitrators or an umpire, sudi method 
shall be followed, but if no method be provided therein, or if a method 
be provided and any party thereto shall fail to avail himself of such 
method, or for any other reason there shall be a lapse in the naming of 
an arbitrator or arbitrators or umpire, or in filling a vacancy, then, 

upon application by either party to the controversy, the 

Court shall designate and appoint an arbitrator or arbitrators, or umpire, 
as the case may require, who shall act under the said agreement with 
the same force and effect as if he or they had been specifically named 
therein; and unless otherwise provided, the arbitration shall be by a 
single arbitrator. 

5. If any suit or proceeding be brought upon any issue referable to 

arbitration under an agreement in writing; the Court, upon 

being satisfied that the issue involved in such suit or proceeding is 
referable to arbitration under such an agreement in writing, shall stay the 
trial of the action until such arbitration has been had in accordance 
with the terms of the agreement; provided the applicant for the stay is 
not in default in proceeding with such arbitration. 

6. Any application to the court hereunder shall be made and heard 
in a summary way in the manner provided by law for the making and 
hearing of motions, except as otherwise herein expressly provided. 

11 



320 REPORT OF OOMMITTBB ON • 

7. The arbitrators selected either as prescribed in this act, or other- 
wise, or a majority of them, may summon in writing any person to 
attend before them or any of them as a witness and in a proper case to 
bring with him or them a book or paper. The fees for such attendance 
shall be the same as the fees of witnesses before auditors or masters in 
this state. Said summons shall issue in the name of the arbitrator or 
arbitrators, or a majority of them, and shall be signed by the arbitrators, 
or a majority of them, and shall be directed to the said person and shall 
be served in the same manner as subpoenas to testify before a court of 
record of this state; if anv person or persons so summoned to testify 
shall refuse or neglect to obey said summons upon petition the Supreme 
Coiuli may compel the attendance of such person or persons before said 
arbitrator or arbitrators, or punish said person or persons for contempt 
in the same manner now provided for the attendance of witnesses or the 
punishment of them in the Court of ,this state. 

8. At any time within one year after the award is made, which award 
must be in writing and acknowledged or proved in like manner as a deed 
for the conveyance of real estate, and delivered to one of the parties 
or his attorney, any party to the arbitration may apply to the court, 
specified in the agreement, for an order confirming the award; and 
tnereupon the court must grant such an order, unless the award is 
vacated, modified, or corrected, as prescribed in the next two sections. 
Notice of the motion must be served upon the adverse party, or his 
attomery, as prescribed by law for service of notice of a motion in an 
action m the same court. 

0. In either of the following cases, the court may make an order 
vacating the award, upon the application of any party to the arbitration : 

(a) Where the award was procured by corruption, fraud or undue 
means. 

(b) Where there was evident partiality or corruption in the arbi- 
trators, or either of them. 

(c) Where the arbitrators were guilty of misconduct, in refusing to 
postpone the hearing, upon sufiicient cause shown, or in refusing to hear 
evidence, pertinent ancf material to the controversy; or of any other 
misbehavior, by which the rights of any party have been prejudiced. 

(d) Where the arbitrators exceeded tneir powers, or so imperfectly 
executed them, that a mutual, final, and definite award, upon the subject 
matter submitted, was not made. 

Where an award is vacated and the time, within which the agreement 
required the award to be made, has not expired, the court may in its 
discretion direct a rehearing by the arbitrators. 

10. In either of the following cases, the court may make an order 
modifying or correcting the award, upon the application of any party 
to the aroitration : 

(a) Where there was an evident miscalculation of figures, or an evident 
mistake in the description of any person, thing or property, referred 
to in the award. 

(b) Where the arbitrators have awarded upon a matter not sub- 
mitted to them, unless it is a matter not affecting the merits of the 
decision upon the matters submitted. 

(c) Where the award is imperfect in a matter of form, not affecting 
the merits of the controversy. 

The order may modify and correct the award, so as to effect the intent 
thereof, and promote justice between the parties. 

11. Notice of a motion to vacate, modify or correct an award, must 
be served upon the adverse party or his attorney, within three months 
after the award is filed or delivered as prescribed by law for service of 
notice of a motion in an action. For the purposes of the motion any 



COMMEROB, TRADE AND OOKICEROIAL LAW. 321 

judge who might make an order to stay the proceediDgs, in an action 
brought in the same court, may make an order to be served with the 
notice of motion, staying the proceedings of the adverse party to enforce 
the award. 

12. Upon the granting of an order, confirming, modifying or correcting 
an award, judgment may be entered in conformity therewith, but no 
exceptions shall be taken, but an appeal may be taken from such order or 
judgment as hereinafter set forth. 

13. The party moving for an order confirming, modifying or correct- 
ing an award shall at the time such order is filed with liie clerk for the 
entry of judgment thereon, also file the following papers with the clerk : 

(a) The agreement; the selection or appointment, if any, of an 
additional arbitrator, or umpire; and each written extension of ^e 
time, if any, within which to make the award. 

(b) The award. 

(c) Each notice, affidavit or other paper, used upon an application to 
confirm, modify, or correct the award, and a copy of each order of the 
court, upon such an application. 

The judgment may be docketed, as if it was rendered in an action. 

14. The judgment so entered has the same force and effect, in all 
respects, as, and is subject to all the provisions of law relating to, a 
judgment in an action; and it may be enforced, as if it had been 
rendered in an action in the court in which it is entered. 

15. An appeal may be taken from an order vacating an award, or 
from a judgment entered upon an award, as from an order or judgment 
in an action. 

16. This act may be cited as " The State Arbitration Act." 

17. All acts and parts of acts inconsistent with this act are hereby 
repealed, and this act shall take effect on and after the first day of 
July next after its enactment; but shall not apply to contracts made 
prior to the taking effect of this act. 



APPENDIX D. 

REVISED DRAFT OF TREATY FOR COMMERCIAL 

ARBITRATION 

As Afprovbd by Committeb on Commerce, Trade and. 
C0MME901AL Law of the American Bar 
Association (1922) 

The government of the United States of America and the govern- 
ment of being desirous of facilitating com- 
merce and trade between the two nations by validating and making 
enforceable agreements for arbitration of commercial disputes between 
the citizens or subjects of each of the high contracting parties, have 
authorized the undersigned, to wit, Herbert Hoover, Secretary of Com- 
merce of the United States, and to conclude 

the following agreement: 

ARTICLE I. 

A provision in a written contract between the citizens, subjects, or 
residents of each of the high contracting parties to settle by arbitration a 



322 OOMKBRCB, TRADE AND OOMMEROIAL LAW. 

controversy thereafter arisinK or an agreement in writing to submit to 
arbitration an existing controversy between such citizens, subjects, or 
residents shall be valid, enforceable and irrevocable, save only upon such 
grounds as exist at law or in equity for the revocation of any contract, 
and shall be so treated by the courts of the high contracting parties. 

ARTICLE n. 

The awards of any referee, board or tribunal of arbitration duly and 
regularly made within the territory and possessions of eith^ of the high 
contracting parties shall be entitled in all the courts of the other high 
contracting party to full faith and credit; and shall not be open to 
attack save upon the ground of fraud, bad faith, misbehavior or mis- 
conduct on the part of the referee, board or tribunal making the award, 
including failure to receive evidence by which the rights of any party to 
the arbitration have been seriously prejudiced; and shall not be open to 
modification except where there was an evident miscalculation or mis- 
take in description in the award. 

ARTICLE III. 

The high contracting parties will confer suitable jurisdiction upon 
their courts, respectively, to furnish adequate and appropriate relief in 
the enforcement of arbitration agreements and awards and will estab* 
lish appropriate methods and machinery for the performance of such 
agreements and the enforcement of such awards. 

ARTICLE IV. 

The citizens, subjects or residents, of each of the high contracting 
parties shall enjoy in the territories and possessions of the other the same 
protection as native citizens, subjects, or residents of the nation most 
favored in respect of the validity, irrevocability and enforceability of 
arbitration agreements, submissions and awards. 

ARTICLE V. 

The present agreement shall be ratified by the President of the United 
States of America, by and with the advice and consent of the 8enate 

thereof, and by v • . ^^^ ^* ^^^^ become 

effective upon the date of the exchange of ratifications, which shall take 
place at Washington as soon as possible. 

Done in duplicate in the English and .« languages, at 

Washington this day of one thousand nine hundred 

and twenty-two. 



REPORT 

or THB 

COMMITTEE ON INTERNATIONAL LAW. 

To the American Bar Association: 

The members of the Standing . Committee on International 
Law recognize that the scope of their report is limited by two 
circumstances : firsts that it is a committee of a Bar Association 
and that its report should be confined to questions of law; 
second, that the Bar Association is an American body and that 
the report should therefore deal with questions primarily affect- 
ing the United States. It cannot be limited to matters which 
exclusively concern our country, for although international 
law is an integral part of the law of the United States^ it is 
ex vi termini the law between States and only comes into play 
in questions affecting States, their citizens or subjects. The 
report of your committee must inevitably deal with matters 
affecting foreign nations, but only those questions of the past 
year will be considered whidi involve the United States. And 
of these only the most important will be discussed. 

They are in the judgment of your committee four in number : 
(1) the election of the judges of the Permanent Court of Inter- 
national Justice; (2) the treaties with Germany, Austria and 
Hungary ending the war of the United States with those Coun- 
tries; (3) the Washington Conference on the Limitation of 
Armament; Pacific and Far Eastern Questions; (4) the Wash- 
ington Conference on the drawn out dispute between the sister 
American Bepublics of Chile and Peru on the ownership of the 
provinces of Tacna and Arica. Each of these questions will be 
considered — ^the first briefly, the second and third at some 
length, the fourth briefly, as our interest in the matter of Tacna 
and Arica is that of a neighbor rather than that of a participant. 

I. The Permanent Couet of International Justice. 

Into the history of this noble institution this report cannot 
enter. SuflSce it to say that it owes its origin to a past president 
of this Association, the Honorable Elihu Boot, who, as Secretary 
of State of the United States, instructed the American delega- 
tion to the Second Peace Conference assembled at The Hague 
in 1907, to lay before that international gathering, in which 
forty-four sovereign States were represented, a proposal to form 

(323) 



324 REFOBT OF OOMMITTBB ON 

an international court of justice modeled upon the Supreme 
Court of the United States. The proposal was made by Joseph 
H. Ghoate, a past president^ and by another member of uie 
Association^ resulting in the adoption of a draft convention 
which, with simdry modifications and additions forms the so- 
called statute of the present Permanent Court adopted by the 
Assembly of the League of Nations on December 13, 1920. The 
judges and deputy judges of this august tribunal, respectively 
eleven and four in number, were elected by the Council and 
Assembly of the League on September 6 and 7, 1921. They met 
informally at The Hague on February 15, 1922, elected a pres- 
ident, vice-president and registrar, and took up the drafting of 
rules of practice and procedure. The court will appropriately 
hold its first formal session on June 15th, in the Peace Palace 
of' The Hague, the gift of Andrew Carnegie, a citizen of the 
United States, for the court is due to American initiative, Amer- 
i'can persistence, American ingenuity. And in this court an 
American sits, appropriately and of right. 

It is not within the scope of this report to describe the meeting 
of the Committee of Jurists at The Hague in 1920 which drafted 
the project of the International Court containing the method of 
appointing the judges prepared by Mr. Root, and a provision 
vesting the court with limited but obligatory jurisdiction, within 
which State may sue State and, in its absence, duly invited, obtain 
judgment upon the facts as proved and the law applicable. The 
project wais mutilated by the Coimcil and Assembly by striking 
out the articles on jurisdiction, so that its jurisdiction depends 
solely on the will of the litigating parties, the resort to the 
court is by the agreement of both of the parties, not upon the 
initiative of one, as in the case with courts. The method of 
selecting the judges was retained and it is due to this method 
that the judges have been chosen and the court constituted. 

As the judges were elected since the last meeting of the Bar 
Association, it is proper to dwell for a moment upon the method 
of election.* 

The Permanent Court of International Justice shall be composed of 
a body of independent judges, elected regardless of their nationality 
from amongst persons of high moral character, who possess the qiialifica- 
tions required in their respective countries for appointment to the hijshest 
judicial offices, or are jurisconsults of recognised competence in mter- 
national law. [Article 2.] 

The Court shall consist of fifteen members: .eleven judges and four 
deputy-judges. The number of judges and deputy-judges may here- 
after be increased by the Assembly, upon the proposal of the Council 
of the League of Nations, to a total of fifteen judges and six deputy- 
judges. [Article 3.] 



^ Statute for the Permanent Court of International Justice. 



INTKRNATIONAL LAW. 325 

The memben of the Court shall be elected by the Aasembly and by 
the Council from a list of persona nominated by the national groups in 
the Court of Arbitration, m accordance with the following provisions. 
.... [Article 4.] 

At least three months before the date of the election, the Seoretanr- 
General of the League of Nations shall address a written request to tne 
Members of the Court of Arbitration .... inviting them to undertake, 
within a given time, by national groups, the nomination of persons in a 
position to accept the duties of a member of the Court. 

No group may nominate more than four persons, not more than two 
of whom shall be of their own nationality. In no ease must the num- 
ber of candidates nominated be more than double the number of seats 
to be filled. [Article 5.] 

Before making these nominations, each national group is recom- 
mended to consult its Highest Court of Justice, its Le^al Faculties and 
Schools of Law, and its National Academies and national sections of 
International Academies devoted to the study of law. [Article 6.] 

The Secretary-General of the League of Nations shall prepare a list 
in alphabetical order of all the persons thus nominated. Save as pro- 
vided in Article 12, paragraph 2, these shall be the only penonB eligible 
for appointment. 

The Secretary-General shall submit this list to the Assembly and to 
the Council. [Article 7.] 

The Assembly and the Council shall proceed independently of one 
another to elect, firstly the judges, then tne deputy-judges. [Article 8.] 

At every election, the electors shall bear in mind that not on^ should 
all the perB(»8 appointed as members of the Court possess the qualifica- 
tions required, but the whole body also should represent the mam forms 
of civilization and the principal legal ^stems of the world. [Article 0.] 

Those candidates who obtain an absolute majority of votes in tiie 
Assembly and in the Council shall be considered as elected. 

In the event of more than one national of the same Member o{ the 
League being elected by the votes of both the Assembly and the 
Council, the eldest of these only dutU be considered as elected. 
[Article 10.] 

If, after the first meeting held for the purpose of the election, one or 
more seats remain to be filled, a second and, if necenaiy, a third meeting 
shall take place. [Article 11.] 

If, after the third meeting, one or more seats still remain unfilled, a 
joint conference consisting of six members, three appointed by the 
Assembly, and three by the Council, may be formed, at any time, at 
the request of either the Assembly or the Council, for the purpose of 
choosing one name for each seat still vacant, to submit to the Assembly 
and the Council for their re^ective acceptance. 

If the Conference is imanimously agreed upon any person who fulfills 
the required conditions, he may be included in its list, even though he 
was not included in the list of nominations referred to in Articles 4 and 5, 

If the joint conference is satisfied that it wiU not be suciMSsaful in pro- 
curing an election, those members of the Court who have already been 
appointed shall, within a period to be fixed by the Coundl, proceed to 
fill the vacant seats by selection from amongst those candidates who 
have obtained votes either in the Assembly or in the CounciL 

In the event of an equality of votes amongst the judges, the eldest 
judge shall have a casting vote. [Article 12.] 

The members of the Court shall be elected for nine years. 

Th^r may be re-elected. 



3^6 REPORT OP COMMITTEE ON 

They shall continue to discharge their duties until their places have 
been filled. Though replaced, they shall finii^ any cases which they may 
have begun. [Article 13.] 

Vacancies which may occur shall be filled by the same method as that 
laid down ior the first election. A member of the Court elected to 
replace a member whose period of appointment had not expired will 
hold the appointment for the remainder of his predecessor's term. 
[Article 14.] 

Deputy-judges shall be called upon to sit in the order laid down in a 
Ust. 

This list shall be prepared by the Court and shall have regard firstly 
to priority of election and secondly to age. [Article 15.] 

The special chambers provided for in Articles 26 and 27 may, with 
the consent of the parties to the dispute, sit elsewhere than at The 
Hague. [Article 28.] 

The council consists of nine members, the representatives of 
the large powers five in number (four in fac^ owing to the 
refusal of the United States to ratify the Covenant of the 
Hieague of Nations), and four members elected annually by the 
Assembly. These large powers preponderate in fact if not neces- 
sarily in theory. In the Assembly, in which each member of the 
league is entitled to equal representation, the small nations pre- 
ponderate. The respective interests of the great and small States 
are thus sought to be safeguarded; the preponderance of the 
small powers in the Assembly being a check upon the abuse of 
power by the large powers in the council, and the preponderance 
of the large powers in the council being a check upon the abuse 
of power by the small States in the Assembly. 

T^e proposal of names of persons by the members of the 
Permanent Court of Arbitration in each of the countries belong- 
ing to the league secures the recommendation or at least the 
possibility of such a recommendation of names to the council 
and Assembly without the intervention of States in first instance, 
reserving the jwlitical intervention of States for the election, 
which is and muist be a political act. 

In case the council and Assembly should fail to agree a con- 
ference committee consisting of an equal number of the council 
and Assembly meets to elect, choosing from the list of recom- 
mended names, unless the committee imanimously agrees upon 
a person not included in the list. If the committee fails to elect, 
then the members of the court already chosen select the remain- 
ing judge or judges from the list of persons whose names have 
been voted upon by the council or Assembly, and in case of a tie 
the eldest judge decides. 

In one instance, at the first election, the council and Assembly 
failed to agree upon a deputy-judge. The Conference Committee 
was called into being and selected a third person from among 
the list of persons already voted for. 

It will be observed that the principle of selection is American, 
indeed Mr. Root stated that it was taken from the Federal 



INTKBNATIONAL LAW. 327 

Canvention of 1787, and the method of selection by the Con- 
ference Committee is that of the Senate and Honse of Repre- 
sentatives of the United States, agreeing under the pressure of 
public opinion. 

But there are two further traces of American authorship, one 
requiring the principal legal systems of the world to be con- 
sidered, so that the court should be an understanding court; the 
other permitting the appointment of judge by a party to litiga- 
tion which is not represented in the permanent panel of judges, 
thus securing and maintaining equality at the very moment of 
interest to the parties in litigation. 

The elimination of the provisions on jurisdiction has con- 
verted the court into a. board of arbitration with a permanent 
personnel. 

The importance of these provisions justifies their repro- 
duction : * 

When a dispute has anaen between States, and it has been found im- 
possible to settle it by diplomatic means, and no Agreement has. been 
made to choose another jurisdiction, the partjyr complaining may bring 
the case before the Court. The Court shall, nrst of all, decide whether 
the preceding conditions have been complied with; if so, it shall hear 
and determine the dispute according to the terms and within jthe limits 
of the next Article. [Article 33.] 

Between States which are Members of the League of Nations, the 
Court shall have jurisdiction (and this without any special convention 
giving it jurisdiction) to hear and det rmine cases of a legal nature, 
concerning: 

(a) The interpretation of a treaty : 

(b) Any question of international i iw; 

(c) The existence of any fact wh: h, if established, would con- 
stitute a breach of an international ol Igation; 

(d) The nature or extent of reparation to be made for the breach 
of an international obligation; 

(e) The interpretation of a sentence passed by the Court. 

The Court shall also take cognizance of all disputes of any kind which 
may be submitted to it by a general or particular convention between 
the parties. 

In the event of a dispute as to whether a certain case comes within 
any of the categories above mentioned, the matter shall be settled by 
the decision of the Court. [Article 34.] 

The Court shall, within the limits of its jurisdiction as defined in 
Article 34, apply in the following order: 

(1) International conventions, whether eeneral or particular, es- 
tablishing rules expressly recognized by the oontestii^^ States; 

(2) International custom, as evidence of a general practice, which 
is accepted as law; 

(3) The ^neral principles of law recognized by civilized nations; 

(4) Judicial decisions and the teachings of the most highly quaU- 
fied publicists of the various natioxis, as subsidiary means for the 
determination of rules of law. [Article 35.] 



The Project of a Permanent Court of International Justice and Reso- 
hUionM of the AdvUcry Committee of Jurists, by James Brown Scott 
1020. 



328 EEPOBT OP COMMITTBB ON 

Whenever one of the parties shall not appear before the Court, or 
shall fail to defend his case, the other party may call upon the Court to 
decide in favor of his claim. 

The Court must, before doing so, satisfy itself, not only that it has 
jurisdiction in accordance with Articles 33 and 34, but also that the 
claim is supported by substantial evidence and well founded in fact 
and law. [Article 52.] 

Your cammittee is of opinion that these provisions should be 
restored so that a war weary world should have two institutions 
— the so-called Permanent Court of Arbitration at The Hague, 
in which to compromise their disputes by judges of their own 
choice, appointed after the ^controversy has arisen; the Per- 
manent Court of International Justice, to decide their disputes 
according to known rules of law by judges appointed in advance 
of litigation. 

Your committee expresses the hope that the United States, one 
of whose most illustrious jurists lends weight and dignity to the 
court, may find a way to make use of the court and participate 
in its labors, which the Government of the United States can do 
without becoming party to the League of Nations as such. 

Your committee ventures these suggestions without expressing 
an opinion in favor of or opposed to the present League of 
Nations. 

II. Trbatibs of Peace Ending thb Wobld Wab. 

The peace treaties raise the question of the treaty-making 
power and more especially the branches of the Qovemment of 
the Union through which and by which peace may be made. On 
one point there is no doubt, the exercise of the treaty making 
power is by the Constitution of these United States vested in 
the executive branch of the government of the union which alone 
possesses the power of negotiation, and in that branch of the legis- 
lative department known as the Senate, without whose advice 
and consent no treaty or bilateral act having the force of a treaty 
can bind the government of the union, the states of the union 
and the people of the states in their individual and united 
capacity. A treaty of peace therefore is made by the president, 
and the concurrence of two-thirds of the senators present in the 
Senate at the time of voting. 

So much for a treaty. The question arises, and it arose before 
and after the last meeting of the Association, whether peace may 
be made and war ended by the United States in any other way. 
The majority of the House and of the Senate insisted that peace 
should be made by a joint resolution of these two bodies, and 
passed a joint resolution to that effect, a view which did not find 
favor with the late president, who vetoed a joint resolution on 
May 27, 1920, intended to repeal the joint resolutions '* declar- 



INTERNATIONAL LAW. 329 

ing a state of war to exist between the IThited States and Ger- 
many^ and between the United States and the Austro-Hxingarian 
government, and to declare a state of peace/' 

The joint resolution of April 6, 1917, provided "That the 
state of war between the United States and the Imperial Ger- 
man Government which has thus been thrust upon the United 
States is hereby formally declared/' 

An armistice was granted to Germany at its request, and was 
signed by representatives of the Allied and Associated Powers 
on November 11, 1918, stopping hostilities, but not ending the 
war. 

The late President of the United States and four commis- 
sioners attended the Peace Conference of Paris, held in Paris 
during the course of 1919, affixed their signatures on June 28, 

1919, in the Palais of Versailles to a trealy of peace which was 
intended to end the war as soon as three of the principal allied 
and associated powers had deposited their ratifications thereof 
with the French (Jovemment. This was done on January 10, 

1920, and war with Germany ended for each nation upon its 
deposit of ratifications. The treaty of Versailles did not meet 
with the favor of the Senate of the United States, before which 
body it was duly laid by the late President. On two occasions, 
the first on November 19, 1920, the second on March 19, 1921, 
two-thirds of the senators present failed to concur. 

The declaration of a state of war on April 6, 1917, was a 
unilateral atet of the United States, and the declaration could be 
repealed by a unilateral act of a later date, and as the act was in 
this case a joint resolution, it could be repealed as far as the 
Government of the United States was concerned by a subsequent 
joint resolution. Whether it should be done or not was for the 
Congress to determine in first, and the president for the time 
being in the second instance. The then president vetoed it as 
he had the constitutional right to do. 

The joint resolution as a unilateral act could only affect the 
United States. It could not have the effect of a treaty, for a 
treaty, in whatever form, is an agreement, an act between 
two or more nations. The joint resolution would only repeal 
the state of war as far as the American (Jovernment was con- 
cerned, and Germany would not be affected by any of its pro- 
visions. If Germany passed a declaration in identical terms, it 
would only be an act of uniform legislation as far as Germany 
was concerned. It could be repealed by Germany at any time. 
Doubtless it would be wise to include in the repealing resolution 
an enumeration of the rights which this country intended to 
secure from Germany. This the Congress did. But it was only a 
repeal of a joint resolution and only an express declaration of 



330 REPOET OF COMMITTEE ON 

intent on the part of the United States in regard to rights 
against Germany. If Germany had taken similar action, which 
it did not, it would only have ended the state of war as far as 
Germany was concerned, supposing that there had been an 
antecedent declaration or act; and if the German act had in- 
cluded the same enumeration of rights claimed by the "United 
States, the German Government could have repealed the ad 
and claims at any subsequent date. This is of course predicated 
on the supposition that Germany was a frefe agent, which it was 
not, for its assets have been mortgaged to the Allied and^ Asso- 
ciated Powers by the Treaty of Versailles, and any action of 
Germany would have to be with the consent of these Powers, in 
so far as it was inconsistent with this treaty. 

This was apparent to the present president, and his advisers, 
for in his first address to the Congress of the United States, in 
April 12, 1921, he said : 

To establish a state of technical peace without further delay, I should 
approve a declaratory resolution of Congress to that effect, with the 
qualifications essential to protect all our rights. 

He was, however, careful to add that 

such a resolution should undertake to do no more than thus declare the 
state of peace which all America craves. 

That is to say, the proposed joint resolution should repeal the 
declaration of the state of war of April 6, 1917, and contain the 
rights to be secured from Germany by negotiation. 

This the Congress did by a joint resolution terminating the 
state of war between the Imperial German Government and the 
United States of America, and between the Imperial and Hoyal 
Austro-Hungarian Governnjent and the United States of Amer- 
ica, approved by the present president on July 2, 1921. 

The declaration of a state of war was thus repealed and the 
administration was free to secure by negotiation the rights 
enumerated in the joint resolution. Here a difficulty presented 
itself because Germany could not grant part of the rights — all 
of which had been granted to the Allied and Associated Powers. 
A little reflection showed the way out. The framers of the 
Treaty of Versailles were familiar with this view as the repre- 
sentative of the United States in the committee which drafted 
the Treaty of Versailles had repeatedly stated during its drafting 
to the representatives of the other Powers, that the United 
States would under the treaty take its share of all the privileges 
granted by Germany to the principal Allied and Associated 
Powers, of which the United States was specified as one in the 
preamble of the treaty, without ratifying it; that the United 
States would not be bound by any of the duties or obligations 



INTJBRNATIONAIi LAW. 331 

of the treaty without assuming them by ratification of the treaty, 
just as the President of the United States cTould call the meeting 
of the League of Nations as he was authorized to do by the 
Covenant, without the ratification of that instrument by the 
United States, and just as Gustave Ador of Switzerland could 
act as arbitrator in certain cases specified in the treaty, although 
Switzerland was not and Gustave Ador as a citizen of that 
country could not be a party to the treaty. 

Upon this theory the administration claimed grants of ad- 
vantage to the United States and its citizens, eliminating grants 
which it did not care to receive, and rejected the duties and 
obligations which the administration did not care to assume. 

The first were looked upon as grants from Germany to the 
United States as an Associated Power made by Germany under 
pressure of the Allied and Associated Powers, of which the 
United States was one. They were gifts that only needed to 
be claimed. The duties or obligations specifically enumerated 
in the treaty could only become effective by action of the United 
States, as the United States alone could bind itself to take a 
particular course of action. Naturally the United States, as one 
of the Allied and Associated Powers could only take the grants 
in the form in which they were granted to the principal Allied 
and Associated Powers, as they were one and the same to each. 
The same is to be said of the treaty of St. Germain-en -Lay e of 
September 10, 1919, with Austria, and the treaty of the Trianon, 
with Hungary, signed on June 4, 1920. Therefore, the treaty of 
August 25 1921, between the United States and Germany, the 
treaty of August 24, 1921, with Austria, and the treaty of August 
29, 1921, with Hungary, included the statement of rights claimed 
by the United States in the joint resolution of July 2, 1921, 
which were specifically accepted by each of the three contracting 
powers; the portions of the treaties of Versailles, St. Germain 
and the Trianon, of which the United States accepted the 
benefits ; a statement that the United States received these rights 
as they were granted to the Allied and Associated Powers ; a non- 
acceptance of parts of the treaties, and a repudiation of the 
duties and obligations contained in the portions of the treaties 
^ which the administration expressly repudiated. Only the parts 
* of the Treaty of Versailles which were accepted by the United 
States in its Treaty with Germany need be set forth as those of 
the treaties with Austria and Hungary are similar : 

Germany undertakes to accord to the United States, and the United 
States shall have and enjoy, all the rights, privileges, inaemnities, repara- 
tions or advantages specified in the aforesaid Joint Resolution of the 
Congress of the United States of July 2, 1921, including all the rights 
and advantages stipulated for the benefit of the United States in the 
Treaty of Versailles which the United States dbaU fully enjoy notwith- 



332 REPORT OF COMMITTBB ON 

Standing the fact that such Treaty has not been ratified by the United 
States. [Artide I.] 

With a view to defining more particularly the obligations of Germany 
under the foregoing Article with respect to certain provisions in the 
Treaty of Versailles, it is understood and agreed between the High 
Contracting Parties; 

(1) That the rights and advantages stipulated in that Treaty for the 
benefit of the United States, which it is intended the United States shall 
have and enjoy, are those defined in Section 1, of Part IV, and Parts V, 
VI, Vm, IX, X, XI, XII, XIV, and XV. 

The United States in availing itself of the rights and advantages 
stipulated in the provisions of that Treaty mentioned in this paragraph 
will do so in a manner consistent with the rights accorded to Germany 
imder such provisions. 

(2) That the United States shall not be bound by the provisions of 
Part I of that Treaty, nor bv anv provisions of that Treaty including 
those mentioned in paragraph (1) of this Article, which relate to the 
Covenant of the League of Nations, nor shaU the United States be 
bound by any action taken by the League of Nations, or bv the Council 
or by the Assembly thereof, unless the United States shall expressly 
give its assent to such action. 

(3) That the United States assumes no obligations under or with 
respect to the provisions of Part 11, Part III, Sections 2 to 8 inclusive 
of Part IV, and Part XIII of that Treaty. 

(4) That, while the United States is privileged to participate in the 
Reparation Commission, according to tfie terms of Part VIII of that 
Treaty, and in any other Commission established under the Treaty or 
under any a^eement supplemental thereto, the United States is not 
bound to participate in any such commission unlesB it shall elect to do so. 

(5) That the periods of time to which reference is made in Article 440 
of the Treaty of Versailles shall run. with respect to any act or election 
on the part of the United States, from the date of the coming into 
force of the present Treaty. [Article II.] 

The skillful diplomacy of the Honorable Charles Evans 
Hughes, Secretary of State of the United States, has caused this 
view of the rights of the United States under the treaties of 
Versailles, St. Germain-en-Laye ani the Trianon to prevail with 
Germany, Austria and Hungary, and to be accepted by the other 
parties to the treaties. 

III. Conference on the Limitation op Armament and 
Pacific and Fab Eastern Questions. 

The Treaty of Versailles disarmed Germany ; its navy was sur- 
rendered to the Allied and Associated Powers ; its army was dis- 
banded, and only 100,000 men were permitted in the future, and 
those only by contract, not constrription, and for a period of years. 
The air forces and agencies were also defined and limited. 

It was intended that this should be the first step towards the 
general limitation of armament — a purpose set forth in the open- 
ing paragraph, in the nature of a preamble, of the naval, mili- 
tary and air clauses of the Treaty. 



INTERNATIONAL LAW. 333 

In order to render posedble the initiation of a general limitation of the 
armaments of all nationSi Germany undertakes strictly to observe the 
military, naval and air clauses which follow. 

The attitude of the United States has never been a matter of 
conjecture. It was clearly set forth and stated in a statute of 
August 39, 1916, while the World War was in progress. It was 
more tiian an attitude, it was a programme; it was even more 
than a programme, it was a mandate to the President of the 
United States to take the steps which were stated, to make the 
attitude of the United States known to the Great Powers and 
through them, to the world, and to realize the programme of 
peaceful settlement, with the honorable avoidance of war and the 
consequent reduction of armament which, meeting a need, neces- 
sarily diminishes with the need. 

The material portion of this important, perhaps epoch-making 
statute follows: 

It is hereby declared to be the policy of the United States to adjust 
and settle its international disputes through mediation or arbitration, 
to the end that war may be honorably avoided. It looks with appre- 
hension and disfavor upon a general increase of armament throughout 
the world, but it realizes that no single nation can disarm, and that 
without a common agreement upon the subject every considerable 
power must maintain a relative standing in milituy strength. 

In view of the premises, the President is authorized and requested to 
invite, at an appropriate time, not later than the close of the war in 
Europe, all the great Governments of the world to send representatives 
to a conference which shall be charged with the duty of formulating a 
plan for a court of arbitration or other tribunal to which disputed ques- 
tions between nations shall be referred for adjudication and peaceful 
settlement, and to consider the question of disarmament and submit 

their recommendation to their respective Governments for approval 

Two hundred thousand dollars, or so much thereof as may be necessary, 
is hereby appropriated and set aside and placed at the dii^osal of the 
President to carry into effect the provisions of this paragraph. 

If at any time before the construction authorized by this Act shall 
have been contracted for there shall have been established, with the 
cooperation of the United States of America^ an international tribunal 
or tribunals competent to secure peaceful determinations of all inter- 
national disputes, and which shall render unnecessary the maintenance 
of competitive armaments, then and in that case such naval expendi- 
tures as may be inconsistent with the engagements made in the estab- 
lishment of such tribunal or tribunals may be suspended, when so ordered 
by the President of the United States. [Provision of the Act making 
appropriations for the naval service for the fiscal year ending June 
thirtieth, nineteen hundred and seventeen, and for other purposes. 
Siaiuies at Large of the United States, Vol. 39 (64th Congress), p. 618.] 

The war, in so far as the United States was concerned, ended 
with the treaties with Germany, Austria and Hungary, in the 
summer of 1921. The statute of the Permanent Court of Inter- 
national Justice had been drafted, approved by the nations, and 
only awaited the selection of the judges in September, 1921.. The 
war and the court were out of the way. The way was clear for 



334 REPORT OF COMMITTEE ON 

the limitation of armament. The statute was not to be a dead 
letter. On July 8, 1921, Secretary Hughes addressed an in- 
formal inquiry to four of the nations which with the addition of 
the United States formed the principal Allied and Associated 
Powers of the Treaty of Versailles : The British Empire, France, 
Italy, Japan. They stated their willingness to confer with the 
United States on the matter of armament. The President and 
the Secretary knew that a settlement of Pacific and Far Eastern 
questions was essential, indeed a prerequisite to a limitation of 
armament. The inquiry, therefore, mentioned these topics, and 
the four Powers expressed their willingness to discuss them also. 
But Powers which had but little armament to reduce were in- 
terested, particularly China, in this phase of the subject. There- 
fore, Belgium, the Netherlands and Portugal, in addition to 
China, were asked to confer on these matters. The result was a 
conference of the so-called principal Allied and Associated 
Powers on armament, and a conference of the nine on Pacific 
and Far Eastern questions. 

The Conference opened its labors in the City of Washington 
on November 12, 1921, and adjourned on February 6, 1922, 
with the following treaties and resolutions to its credit : 

A treaty between the United States of America, the British Empire, 
France, Italy and Japan, Umiting naval armament. 

A treaty between the same powers, in relation to the use of sub- 
marines and noxious gases in warfare. 

A treaty between the United States of America, the British Empire, 
France, and Japan, signed December 13, 1921, relating to their insular 
possessions and insular dominions in the Pacific Ocean. 

Declaration accompanying the above four-power treaty. 

A treaty between the same four powers, supplementary to the above, 
signed February 6, 1922. 

A treaty between all nine powers relating to principles and policies to 
be followed in matters concerning China. 

A treaty between the nine powers relating to Chinese customs tariff. 

Resolution for a commission of jurists to consider amendment of laws 
of war. 

Resolution limiting jurisdiction of commission of jurists provided in 
above resolution. 

Resolution regarding a board of reference for Far Eastern questions. 
Resolution regarding extraterritoriality in China. 
Resolution regarding foreign postal agencies in China. 
Resolution regarding armed forces in China. 

Resolution regarding radio stations in China and accompanying decla- 
rations. 

Resolution regarding unification of railways in China and accompany- 
ing declaration by China. 

Resolution regarding the reduction of Chinese military forces. 

Resolution regarding existing commitments of China or with respect 
to China. 

Resolution regarding the Chinese Eastern Railway, approved by all 
the powers, including China. 



INTERNATIONAL LAW. 335 

Resolution regarding the Chinese Eastern Railway, approved by all 
the powers, other than China. 

In addition there were two further treaties : 

Treaty between Japan and China for the settlement of outstanding 
questions relative to Shantung (February 4, 1922). 

Treaty between the United States and Japan with regard to the 
former German islands in the Pacific Ocean, in particular the island of 
Yap (February 11, 1922). 

The first of this latter group was between China and Japan, 
and was reported to but not made in or by the conference. It can 
be said, however, that it was concluded under its auspices. The 
second was between Japan and the United States and was 
negotiated by representatives of the two countries during but 
not under the auspices of the conference. It was sufficiently 
connected with the conference to be mentioned in the official 
report of tlie American Delegation. It was, however, the work 
of Mr. Hughes as Secretary of State, and of the Japanese Am- 
bassador to the United States, not of those high officials as com- 
missioners of their respective countries to the Conference. It 
was signed February 11th, after its adjournment. It was clearly 
R related subject. 

The American Commissioners were Secretary of State Hughes, 
Senator Henry Cabot Lodge, Senator Oscar S. Underwood, and 
Mr. Elihu Boot, at one time Secretary of War, Secretary of 
State, and Senator of the United States. Of the conference, 
Secretary Hughes was appropriately chosen chairman, and the 
Honorable John W. Garrett, of Maryland, Secretary-General. 

It is not the purpose of your committee to consider these 
treaties or resolutions in detail. The treaties to which the 
United States is a party have all been advised and consented to 
by the Senate, and only await a ratification by the other contract- 
ing parties, and a deposit of ratifications to become laws of the 
United States and to bind the other countries to their observance. 
There are, however, certain observations which your committee 
deems it timely and not without interest to make. Military or 
aerial armament was untouched by the conference. The dis- 
turbed state of Europe made it seem highly embarrassing to one 
of the -participants to broach the subject of land armament. By 
general consent this was laid aside for the present, doubtless to 
await a more propitious occasion. It was apparently felt that 
the time was not ripe for a discussion of aerial armament : 

It was found to be impracticable to adopt rules for the limitation of 
aircraft in number, size, or character, in view of the fact that such rules 
would be of little or no value unless the production of commercial air- 
craft were similarly restricted. It was deemed to be inadvisable thus 
to hamper the development of a facility which could not fail to be im- 



336 REPORT OF COMMITTBB ON 

gortant in the progress of civilisation. [Report of American Delegation, 
enate Document No. 125, 67th Congress, 2cL Session.] 

It did not figure in the programme and it was not considered by 
the delegates. The conference was therefore limited by general 
consent to naval armament. It was recognized on all hands that 
armament was needed; it was plain to all that ez<cessive arma- 
ment was to be avoided. Armament for defense there must be. 
Where should the line be drawn? If excessive armament was 
to be avoided competition should cease, for excess was clearly 
traceable to the race in armament without changing the relative 
standing of the leading Powers. The thing to do was to lay the 
axe to the root of the evil. This the conference did by taking 
the navies of the five Powers as they existed on November 11th ; 
providing that they be proportionally reduced, and that the 
agreed tonnage for each of the five be not increased during a 
period of years. The relative standing of each Power would be 
maintained approximately as it was on November 11th; there 
would be a positive reduction in tonnage and there would be in 
effect if not in form, a naval holiday during the life of the treaty 
which by its terms is not to expire before December 31, 1936. 

The task before the conference was delicate, there were diflB- 
culties in the way, there were certain prerequisites to agreement. 
There were only two precedents, but one of these has stood the 
test of time. The first followed the War of 1812 between Great 
Britain and the United States, and was effected by an exchange 
of notes. 

The note of the British Minister, with a few lines from the 
American note, need only be quoted : 

Washington, April 2&th, 1817. 

The undersigned, His Britannick Majesty's Envoy Extraordinary and 
Minister Plenipotentiary, has the honour to acquaint Mr. Rush, that 
havine laid before His Majesty's Government the correspondence which 
passed last year between the Secretary of the Department of State and 
the undersigned upon the subject of a proposal to reduce the Naval 
Force of the respective countries upon the American Lakes, he has 
received the commands of His Royal Highness the Prince Regent to 
acquaint the Government of the United States, that his Royal Highness 
is willing to acceed to the proposition made to the undersigned by the 
Secretary of the Department of State in his note of the 2d of August last. 

His Royal Highness acting in the name and on the behalf of His 
Majesty, agrees, that the Waval force to be maintained upon the 
American Lakes by His Majesty and the Government of the United 
States shall henceforth be confined to the following vessels on each 
side. That is 

On Lake Ontario to one vessel not exceeding one hundred Tons 
burthen and armed with one eighteen pound cannon. 

On the upper lakes to two vessels not exceeding like burthen each 
and armed with like force. 

On the waters of Lake Champlain to one vessel not exceeding like 
burthen and armed with like force. 



INTERNATIONAL LAW. 337 

And His Royal Highneaa agrees that all other armed vessels on these 
Lakes shall be forthwith dismantled, and that no other vessels of war 
shall be tibere built or armed. 

His Roval Highness further agrees that if either Party should here- 
after be desirous of annulling this stipulation and should give notice to 
that effect to the other Party, it shall cease to be binding after the 
expiration of six months from the date of such notice. 

Tlie undersigned has it in command from His Royal Highness the 
Prince Regent to acquaint the American Government, that His Royal 
Highness has issued orders to His Majesty's officers on the lakes direct- 
ing that the Naval force so to be limited shall be restricted to such 
services as will in no respect interfere with the proper duties of the 
armed vessels of the other Party. 

The undersigned has the honour to renew to Mr. Rush the assurances 
of his highest consideration. 

Ghablm Bagot.* 

Dhpartmbnt op State, April 2Qth, 1817. 

The undersigned Acting Secretary of State has the honor to express 
to Mr. Bagot the satisfaction which the President feels at His Royul 
Highness The Prince Regent's having acceded to the proposition of thi9 
Government as contained in the note alluded to. And in further answer 
to Mr. Bagot's note, the undersigned by the direction of the President, 
has the honor to state, that this Government, cherishing the same senti- 
ments expressed in the note of the second of August, agrees, that the 
naval force to be maintained upon the Lakes of the United States and 
Great Britain shall henceforth, be confined to the following vessels on 
each side—that is: ... . 

The undersigned is also directed by the President to state^ that proper 
orders will be forthwith issued by this Government to restnct the naval 
force thus limited to such services as will in no respect interfere with 

the proper duties of the armed vessels of the other party 

Richard Rush' 

The British Minister was Sir Charles Bagot; the Acting Sec- 
retary of State was Richard Rush of Pennsylvania, then Attorney 
General of the United States. The Secretary of State mentioned 
in the correspondence was James Monroe; the President was 
James Monroe, who thus has to his credit the arrangement 
on the Lakes which has kept the peace between the two countries, 
and ^'the doctrine ^^ bearing his name, which has kept Europe 
out of the affairs of the New World. 

It will be observed that this epoch-making arrangement was 
effected by a mere exchange of notes. On the transaction and the 
subsequent procedure, Mr. John Bassett Moore, our great author- 
ity on international law and judge of the Permanent Court of 
International Justice, has this to say in his monumental Digest 
of International Law : 

Orders were at once given by the proper executive officers of the two 
governments for its execution. April 6, 1818, President Monroe, appar- 
ently out of abundant caution, communicated the correspondence to the 

* Davis and Haswell, Treaties and Conventions since July 4, 1776 
(Washington, 1889). pp. 413-414. 
*Ibid., pp. 414^16. 



338 BBPOKT OF COHMITTEB ON 

Senate (Am. State Papers, Foreign Relations, IV, 202). The Senate, 
on the 16th of the same month, by a resolution in which two-thirds ol 
the Senators present concurred, " approved of and consented to " the 
arrangement, and ''recommended tnat the same be carried into effect 
by the President." The President proclaimed the arrangement April 
28, 1818 (11 Stat. 766). The proclamation), however, does not appear 
ever to have been officially communicated to the British government, 
and no exchange of ratifications took place. ''The agreement became 
effective, by means of executive orders on each side, from the date of 
the original exchange of notes." The l^islation in the United States 
on the subject of armaments on the Great Lakes was of such a nature 
as to leave the matter within the discretion of the President, within the 
limits of appropriations actually made. A similar discretion appears to 
have been exercised by the British government [Vol. 1, pp. 214-215]. 

The second precedent is also of American origin. It is con- 
tained in the Treaty of May 28, 1902, and the Supplementary 
Agreement of January 9, 1903, between the Bepublic of Argen- 
tina and the Republic of Chile. These documents were laid by 
the representatives of the two countries before the Second Hague 
Peace Conference of 1907. They are embodied in its proceed- 
ings and were thus brought to the notice of the worid at large. 
Their material provisions are as follow : 

CONVENTION BETWEEN CHILE AND THE ARGENTINE 
REPUBLIC, RESPECTING THE LIMITATION OF 

NAVAL ARMAMENTS. 

[May 28, 1902.] 

With a view of removing all motive for uneasineas or resentment in 
either country, the Governments of Chile and the Argentine Republic 
desist from acquiring the vessels of war which they have in construction, 
and from henceforth making new acquisitions. 

Both Governments agree, moreover, to reduce their respective fleets, 
for which object they will continue to exert themselves until they arrive 
at an understanding which shall establi^ a just balance (of strength) 
between the said fleets. This reduction shall take place within one 
year, counting from the date of exchange of ratification of the present 
convention. [Article 1.) 

The two Governments bind themselves not to increase, without 
previous notice, their naval armaments during five years; the one in- 
tending^ to increase them shall give the other eighteen months' notice. 
It is understood that all armaments for the fortification of the coasts 
and ports are excluded from this agreement, and any floating machine 
destined exclusively for the defence of these, such as submarines, etc., 
can be acquired. [Article 2.] 

The two signatory Parties shall not be at liberty to part with any 
vessels, in consequence of this convention, in favor of countries having 
questions pending with one or the other. [Article 3.] 

In order to facilitate the transfer of pending contracts, both Govern- 
ments bind themselves to prolong for two months the term stipulated 
for the delivery of the vessels in construction, for which purpose they 
will give the necessary instructions immediately this convention has 
been signed. [Article 4.]^ 

* Proceedings of The Hague Peace Conference of 1907, Vol. 1, p. 120. 



INTERNATIONAL LAW. " 339 



PROTOCOL OP THE CONVENTION OF MAY 28, 1902, BETWEEN 

CHILE AND THE ARGENTINE REPUBLIC ON THE 

LIMITATION OF NAVAL ARMAMENTS. 

[January 9, 1903.] 

The Republic of Chile and the Argentine Republic ehall hereafter, 
and in the shortest time possible, sell the vessels of war now building 
for them, for the former in the shipyards of Messrs. Vickens and Messrs. 
Armstrong (England) and for the latter in those of Ansaldo (Italy), 
according to the stipulations set forth in paragraph 1 of Article 1 and 
in Article 3 of the agreement of May 28, 1902. 

In the event of its not being possible from any cause to carry out the 
sale immediately, the high signatory Parties may continue the building 
of the said ships, until thev are completed, but m no case shall they be 
added to the rc»3pective fleets — not even with the previous notice of 
eighteen months required for the increase of naval armaments by 
Article 2 of the above-quoted a^eement. [Article 1.] 

Both the high signatory Parties mutually agree inmiediately to put 
the vessels at present building at the disposal and at the orders of His 
Britannic Majesty, the arbitrator appointed bv the treaty of May 28, 
1902, informing him that they have agreed that the vessels shall not 
leave the yards where they actually are except onhr in case both high 
Parties jointly request it, either because their sale has been effected or 
in virtue of a subsequent agreement. [Article 2.] 

The two high signatory Parties shall immediately communicate to the 
shipbuilders the tact that the vessels have been placed, by common 
consent of both Ck>venunent8, at the disposal of the arbitrator desig- 
nated in the treaty of May 28, 1902, without whose express order they 
may not be delivered to any nation or individual. [Article 3.] 

In order to establi^ the just balance between the two fleets, the 
Republic of Chile ^all proceed to disarm the battleship Capitdn^ Prat 
and the Argentine Republic to disarm its battleships Ganbaldi and 
Pueyrredon. [Article 4.] 

In order that the vessels may be considered disarmed, in accordance 
with the foregoing article, they must be moored in a basin or port, 
having on board only the necessary crew to attend to the preservation 
of the material which cannot be removed, and they must have landed — 

All coal; 

All power and ammunition; 

Artillery of small caliber, torpedo tubes and torpedoes, electric search- 
lights, boats. 

All stores of whatever kind. 

For their better preservation it is permissible to roof in the decks. 
[Article 6.] 

The vessels mentioned in Article 4, which both Governments agree to 
disarm, shall remain in that state, and may not be rearmed without the 
previous notice of eighteen months which the Government who wishes 
to do so is obliged to give to the other Government, except in case of a 
subsequent agreement or of their alienation. [Article 6.]* 

At their expiration they were not renewed^ and the solitary 
precedent before the statesmen of the Arms Conference was the 
so-called Bush-Bagot Arrangement of 1817. 

There were thus two precedents. It happened that there were 
two prerequisites, the first was the abrogation of the Anglo- 

^ Proceedings of The HoQue Peace Conference of tWI, Vol. 1. pp. 121- 
122. 



340 REPORT OF COMMITTEE ON 

Japanese Alliance and a treaty to that effect was the first of the 
agreements negotiated. The second was the agreement not to 
fortify the territorial possessions of the contracting parties in 
the Pacific. 

The British Isles, anchored off the continent of Europe are 
affected by the changes that make and immake Europe; the 
Island Empire of Japan, an^chored off the shores of Asia, is 
affected by every breeze that blows from Asia. The 'statesmen 
of each anxiously watch their respective continents. But the 
British Empire has vast interests in Asia as well. Therefore 
these two Powers felt that they had common interests, and that 
their *^ interests ^' in Asia should be xmtouched by a third Power. 
They therefore agreed on January 30, 1902, to take united action 
in case a third Power should interfere in hostilities to which the 
other was a party. This agreement was revised on August 12, 
1905, by an agreement providing for joint action in the first 
instance. On July 13, 1911, this latter agreement was itself 
revised, in order to exclude its application to a Power which 
had offered to arbitrate its difference with one or other of the 
parties to the dispute. This modification was at the request of 
Great Britain, in order to enable it to conclude an arbitration 
convention with the United States. The material portion of the 
modified convention is thus worded: 

Preamble. — ^The Government of Great Britain and the Government 
of Japan, having in view the important changes which have taken place 
in the situation since the conclusion of the Anglo-Japanese Agreement 
of the 12th August, 1905, and beheving that a revision of that Agree- 
ment responding to such changes would contribute to general stability 
and repose, have agreed upon the following stipulations to replace the 
Agreement above mentioned, such stipulations having the same object 
as the said Agreement, namely ; 

(a) The consolidation and maintenance of the general peace in the 
regions of Eastern Asia and of India ; 

(b) The preservation of the common interests of all Powers in China 
by insuring the independence and integrity of the Chinese Empire and 
the principle of equal opportunities for the commerce and inoustiy of 
all nations in China; ' 

(c) The maintenance of the territorial rights of the High Contracting 
Parties in the regions of Eastern Asia and of India, and the defence of 
their special interests in the said regions: 

Abticlb I. — It is agreed that whenever, in the opinion of either Great 
Britain or Japan, any of the rights and interests referred to in the 
preamble of this Agreement are in jeopardy, the two Govemment4S will 
communicate with one another fully and frankly, and will consider in 
common the measures which should be taken to CKifeguard those 
menaced rights or interests. 

Abticub II. — If by reason of unprovoked attack or aggressive action, 
wherever arising, on the part of any Power or Powers, either High Con- 
tracting Party should be involved in war in defence of its territorial 
rights or special interests mentioned in the preamble of this Agree- 
ment, the other High Contracting Party will at once come to the assist- 



INTEBNATIONAL LAW. 341 

ance of its ally, and will conduct th^ war in common, and make peace 
in mutual agreement with it. 

Article III.— The High Contracting Parties agree that neither of 
them will, without consulting the other, enter into separate arrange- 
ments with anoUier Power to the prejudice of the objects described in 
the preamble of this Agreement. 

Artiglb rVr-^hould either High Contracting Party conclude a treaty 
of general ca4)itration with a thud Power, it is agreed that nothing in 
this Agreement shall entail upon such Contracting Party an obligation 
to go to war with the Power with whom such treaty of arbitration is 
in loroe.^ .... 

The revised version was displeasing to the TTnited States; it 
was not overpleasing to many people in Great Britain. The Con- 
ference found a way out, in substituting a four Power pact, to 
which the United States, the British Empire, France and Japan 
were parties, for a dual agreement, and replacing a military 
alliance by an obli^tion to respect the " rights ^' of each " to 
their insular possessions and insular dominions ^' in the Pacific 
Ocean and an obligation to confer with one another if direct 
diplomacy fails to adjust their diJSBculties. By a supplemental 
treaty of the four Powers the " insular possessions and insular 
dominions " of Japan are defined as including for the purposes 
of the original treaty ** only the southern portion of the Island 
of Sakhalin and the Pescadores, and the islands under the 
mandate of Japan.*' 

It is proper to add in this connection that the Pour Power 
Pact was accompanied by a declaration of even date to the effect 
that the treaty applied to the Mandated Islands in the Pacific 
Ocean with, however, an express reservation on the part of the 
United States that the treaty was not to be deemed an assent to 
the mandates and that it did ^' not preclude agreements between 
the United States of America and the mandatory Powers res- 
pectively in relation to the mandated islands.'* 

This would seem to indicate that an agreement with Japan 
on the mandated islands, especially Yap, was a prerequisite to 
the Pour Power Pact and therefore an indirect but none the 
less a further prerequisite to the limitation of naval armament. 

Secretary Hughes and the Japanese Ambassador fortunately 
reached an agreement in the form of a treaty during the course 
of the conference. Although it was put into shape for sig- 
nature, ii was not signed until February 11, some five days 
after the adjournment. 

This treaty has an importance beyond ite terms. It secured 
from the Principal Allied and Associated Powers a formal 
acceptence and in concrete form of the American interpretetion 
of the Treaty of Versailles and of the other peace treaties. 

*MacMurray*8 Treaties and Agreements with and Concerning China, 
1894-1919 (Washington, 1921), 2 Vols., Vol. 1, p. 900. 



342 REPORT OF COICMITTBB ON 

In the treaty of August 25^ 1921, which Secretary Hughes 
had negotiated with Germany, he reserved on behalf of the 
United States all the rights which Germany had granted to the 
Principal Allied and Associated Powers in the Treaty of Ver- 
sailles, which the United States cared to receive and exercise. 
But the Principal Allied Powers, the British Empire, France, 
Italy and Japan were not parties to the treaty of the United 
States, the Principal Associated Power, with Germany. They 
were not bound by its terms an/} the interpretation of the 
Treaty of Versailles which Secretary Hughes incorporated in 
the German Treaty. It was important to secure the acceptance 
of the American interpretation in a concrete case. 

The Declaration accompanying the Pour Power Pact, to 
which three of the Principal Allied Powers were parties, the 
British Empire, France and Japan, and the Associated Power, 
the United States, provided that the Treaty or Pact should apply 
" to the Mandated Islands in the Pacific Ocean.'* The Declara- 
tion contained, however, the express stipulation that ^^ the mak- 
ing of the Treaty '' was not to be deemed an assent on the part 
of the United States **to the mandates'* and that the Treaty 
did not preclude ^'agreements between the United States of 
America and the Mandatory Powers respectively in relation to 
the mandated islands.'* 

The United States exercised the right acknowledged by the 
Declaration, to make an agreement with the Mandatory Powers 
concerning the mandated islands, and, in so doing, applied tiie 
American interpretation of its rights under the Treaty of 
Versailles in the special treaty under consideration with Japan. 
Article 119 of the Treaty of Versailles, of which the United 
States claimed the benefit, reads, '^ Germany renounces, in favour 
of the Principal Allied and Associated Powers all her rights and 
titles over her oversea possessions." This renunciation included, 
of course, " the former German Islands in the Pacific Ocean, 
in particiilar the Island of Yap." 

In pursuance of Article 119, the Four Principal Allied 
Powers had agreed to confer a mandate of these islands upon 
Japan. In so doing, they acted without the United States, 
which had neither ratified the Treaty of Versailles nor par- 
ticipated '*in the agreement respecting the mandate." In so 
doing they attempted to dispose of an interest of the United 
States under the treaty. Their action was therefore without 
legal eflFect until the United States ratified it in the opening 
article of the treaty with Japan, in the following measured 
language : 

Subject to the provisioiis of the present Convention, the United States 
consents to the adniinistration by Japan^ pursuant to the aforesaid 



INTSRNATIONAL LAW. 343 

mandate, of all the former German Islands in the Pacific Ocean lying 
north of the Equator. [Article I.] 

This interpretation of Article 119 of the Treaty of Versailles 
would seem to apply to every other provision of like nature in 
that treaty and to vest in the United States all the rights of that 
treaty and the other peace treaties set out in the special treaties 
of the United States with Germany, Austria and Hungary. 

The convention was also a diplomatic triumph for Japan as 
well as the United States, as it settled a dispute which threatened 
to become a source of irritation by according to Ainerican citi- 
zens'the rights of Japanese subjects in the Island of Yap and of 
any favored nation in such matters, among others, as access, 
residence, acquisition of property, the use of cables and radio- 
telegraphic communication. 

Notwithstanding the implication to the contrary in its name, 
the Pacific Ocean was looked upon by the conference as a pos- 
sible storm-center. To make the fact correspond to the name, 
the United States, the British Empire and Japan bound them- 
selves in Article 19 of the " Scrapping '^ Convention to main- 
tain '* the status quo at the time of the signing '* of the fortifi- 
cations and naval bases " in their respective territories and pos- 
sessions." This article, therefore, enumerates them. The 
specific nature and the exact extent of the obligation to be 
assumed was thus defined and known in advance. 

Nor was this all. Public opinion seemed to add a third pre- 
requisite — the return of Shantung to China by Japan, which 
the latter had, despite the opposition of China, secured by the 
Treaty of Versailles. In the course of the conference an agree- 
ment was reached between China and Japan to this effect, and 
the treaty embodying the conditions upon which the retrocession 
was made has since been ratified by Japan. The intervention 
of the President of the United States, the acceptance of the good 
ofiSces of Mr. Hughes and of Mr. Balfour as individuals, not as 
officials, were important factors in bringing about this happy 
result. 

But even this was not all. A part of the American proposal 
on naval armament had to be sacrificed as the price of agree- 
ment, as stated in the Report of the American Commission : 

In accepting the allowance for capital ships, France had made a dis- 
tinct reservation. It was said that it would be impossible for the French 
Government to accept reductions for light cruisers, tofpedo boats and 
submarines corresponding to those which were accepted for capital 
ships. Accordingly, France maintained that her necessities required 
that she should be allowed 330,000 tons for cruisers, etc., and 90,000 tons 
for submarines 



! 
J 



344 BBPORT OF COMMITTEE ON 

In view of the insistence on the part of the French delegation that 
they could not abate their requirements as to auxiliaiy craft and sub- 
marines, the Briti^ delegation stated that they were unable to consent 
to a limitation of auxiliary craft adapted to meet submarines. 

The American plan for the limitation of armament was, as 
the Beport of the American Delegation points out, based upon 
the following four general principles: 

(1) That all capitalnshipbuilding progp'ams, either actual or projected, 
should be abandoned; 

(2) That further reduction should be made through the scrapping of 
certain of the older ships; 

(3) That in general regard should be had to the existing xiaval 
strength of the powers concerned ; 

(4) That the capital ship tonnage should be used as the measurement 
of strength for navies and a proportionate allowance of auxiliary com- 
batant craft prescribed. 

The capital ship of the treaty which may be built hereafter 
is defined as "a vessel of war, not an aircraft carrier, whose 
displacement exceeds 10,000 tons (10,160 metric tons) standard 
displacement, or which carries a gun with a calibre exceeding 
8 inches (203 millimetres).'* The capital ship is not to exceed 
36,000 tons (35,660 metric tons) standard displacement It 
is also provided in the treaty that '^no capital ship of any of 
the Contracting Powers shall carry a gun with a calibre in 
excess of 16 inches (400 millimetres)/' 

It is further provided by the treaty that the tonnage of capital 
ships to be retained is : 

By the United States of America 525,850 

By the British Empire 558^50 

By France 221,170 

By Italy 182,800 

By Japan 301,320 

Total 1,790,090 

The ships retained will, of course, deteriorate. Therefore, they 
may be replaced : 

The total capital ship replacement tonnage of each of the Contracting 
Powers shall not exceed in standard displacement for the United States 
525,000 tons (533,400 metric tons) ; for the British Empire 525,000 tons 
(533,400 metric tons) ; for France 175,000 tons (177300 metric tons) ; 
for Italy 175,000 tons (177^00 metric tons); for Japan 315,000 tons 
(320,040 metric tons). [Article IV.] 

The capital* ship in excess of the tonnage allowed is to be 
'' scrapped." That is, it is removed from the category of fight- 
ing ships, or in the language of the treaty, ''placed in such 
condition that it cannot be put to combatant use." 



INTERNATIONAL LAW. 345 

The number of capital ships to be ** scrapped *' and the con- 
sequent reduction in tonnage are shown in the following table: 

No. of Ships Tonnage 

United States of America... 30 820,540 

British Empire 24* 605,»75 

France * 

Italy 

Japan 17* 435,328 

71 1,861343 

Aircraft carriers are included in the treaty, and the carrier is 
defined as '^a vessel of war with a displacement in excess of 
10,000 tons (10,160 metric tons) standard displacement de- 
signed for the specific and exclusive purpose of carrying air- 
craft/' 

The total tonnage for aircraft carriers of each of the Contracting 
Powers shall not exceed in standard displacement, for the United States 
135,000 tons (137,160 metric tons) ; for the British Empire 135,000 tons 
(137,160 metric tons) ; for France 60,000 tons (60,960 metric tons) ; for 
Italy 60,000 tons (60,960 metric tons) ; for Japan 81,000 (82,296 metric 
tons). [Article VII.] 

As in the case of capital ships, aircraft carriers may be re- 
placed, but the carrier in the future and during the life of the 
treaty is not to exceed "27,000 tons (27,432 metric tons) 
standard displacement'^ nor is the carrier to have a gun with 
"a calibre in excess of 8 inches (203 millimetres)/' 

Vessels smaller than capital ships are not limited in number, 
but they are not to exceed 10,000 tons (10,160 metric tons) 
standard displacement, and the calibre of the guns which they 
may carry is not to exceed 8 inches (203 millimetres). 

The Contracting Powers are not to construct or acquire in any 
way or manner ships of the inhibited classes, nor are they to dis- 
pose of them in any way or manner to non-Contracting Powers. 
Peter is not to be robbed to pay .Paul, or, more accurately ex- 
pressed, Paul is not to be enriched at the expense of Peter. 

The treaty is to remain in force until December 31, 1936, and 
thereafter unless it shall be denoimced two years before this date 
by any one of the Contracting Powers. But within a year of the 
denunciation, the Contracting Powers are to meet in conference, 
doubtless in the hope of reaching an agreement for the continu- 
ance of the treaty in more or less modified form. 

^ This figure includes 4 Hoods not laid down. Four more ships are to 
be scrapped on completion of two new ships of 35,(X)0 tons each. 

'As France and Italy did not possess their quotas of tonnage, no 
scrapping is required of them by the treaty. 

' And abandonment of program of 8 ships not laid down. 



346 REPORT OF COICMITTEE ON 

But circumstances may change so that a Contracting Power 
may fear that the agreement has become inequitable as far as it 
is concerned. It may so state and a conference thereupon takes 
place for *Hhe reconsideration of the provisions of the treaty 
and its amendment by mutual agreement/' and in any event " a 
conference of the parties to the treaty is to be held " some eight 
years after the treaty has come into force, to consider what 
changes should be made in its terms because of ** technical and 
scientific developments'* in the interval. 

It is foreseen that one or other of the Contracting Powers may 
be at war. In this event the treaty is to be suspended upon 
notice of such Power; the Powers at peace may meet and a^ee 
to modifications of its terms during the war, of, failing to ^ee 
any one of the Contracting Powers at peace may withdraw itself 
from the obligations of the treaty during the war. On the term- 
ination of hostilities the Contracting Powers are to meet and 
consider what modifications if any, should be made in its pro- 
visions. 

Such is the principle of the limitation of armament adopted 
by the Conference and the principle once agreed to, its applica- 
tion on a larger scale is a matter of expediency. The first step 
is the most important and it has been taken. 

It has already been said that submarines were not included in 
the treaty, but they were not left where the conference found 
them. The British Commission wished and proposed '*that 
united action should be taken by all nations to forbid their 
maintenance, construction or employment." The United States 
stood, however, for the use of submarines against war vessels, 
and proposed an acceptable compromise drafted by Mr. Boot, 
forbidding their use as commerce destroyers and punishing " as 
for an ad of piracy ? violations by submarines of the rules of 
visit and search required of surface vessels. 

In tlie treaty in which the United States, the British Empire, 
France, Italy and Japan renounce the use of submarines the 
same Powers thus deal with gases: 

The use in war of asph3^iatiDg, poisonous or other sases, and all 
analogous liquids, materials or devices, having been justT^r condemned 
by the general opinion of the civilized world and a ])rohibition of such 
use having been declared in treaties to which a mtgority of the civilised 
Powers are parties, 

The Signatory Powers, to the end that this prohibition shall be 
universally accepted as a part of international law binding alike the 
conscience and practice of nations, declare their assent to such pro- 
hibition, a^ee to be bound thereby as between themselves and invite 
all other civihzed nations to adhere thereto. [Article V.] 

For the purposes of this report it will be sufficient to refer 
only to the series of agreements concerning China, to all of 



INTERNATIONAL LAW. 347 

which the United States and Japan were parties, and to a reso- 
lution outwardly of modest proportions, but inwardly of infinite 
possibilities. 

Of the Chinese agreements it may be said as a whole that they 
start from the reafiSrmation by all of the participants of the 
policy of the open door, which they have ^* observed ^ in theory 
and violated in practice ; and that they aim to secure the recogni- 
tion in practice as well as in theory of China as a free, sovereign 
and independent country, permitting, in the meantime, to China 
'' an increase of its revenues, securing the withdrawal of foreign 
troops, and providing for the abolition of extraterritoriality," 
without which freedom, sovereignty and independence are high- 
sounding but hollow phrases. 

Your committee expresses the hope, although it is beyond the 
scope of its report, that the statesmen of China will probe 
beneath the surface of things and find in the enlightened tradi* 
tions of their country the fundamental principles of justice and 
of fair-dealing which will make of the oldest of nations the New 
China, instead of attempting to introduce an alien civilization, 
a procedure which is likely to be futile when it is not actually 
fatal. 

The difference between anarchy, which destroys, and freedom, 
which preserves alike nations and peoples, is that the will of all 
as well as of the many, and the will of the few as well as that of 
the one, is a restrained will; and liberty is only possible or 
desirable if the freedom of action of the will of the individual 
and of the community be a will restrained by the principles of 
justice expressed in rules of law. 

We speak of nations as independent and that is true in the 
sense that no nation should be dependent upon the will of 
another; but nations are interdependent, as the happiness and 
prosperity of any one does in fact depend upon the many. It 
is indeed true "that no one can rightfully impose a rule on 
another '* and that none can make a law of nations, to revert to 
the language of Chief Justice Marshall. There is no person, 
however powerful and self-sufficient, who can stand out against 
the combined common judgment of mankind, and there is no 
State, made up of men and women more or less artificially 
grouped, which can stand out against the common judgment of 
the other States or the greater portion of them, composed of 
these same men and women divided by a boundary which does 
not separate. The difficulty is to concentrate the thought of 
mankind upon the essentials of international conduct and 
through conference to express the principles of justice in rules 
of international conduct. Mr. Boot took advantage of the 
meeting of the advisory committee of jurists at The Hague in 
the summer of 1920, to draft a project for the International 



348 BEPOBT OF COMMITTBE ON . • 

Court of Justice, to turn the thouf^^hts of statesmen in this direc- 
tion and to state the method of taking over from the individual 
the principles of justice and of putting them in the rules of 
public law for the observance of nations. He therefore proposed 
and the committee adopted the following resolution : 

The Advisory Committee of Jurists, assembled at The Hague to draft 
a plan for a Permanent Court of International Justice, 

Convinced that the security of States and the well-beinff of peoples 
urgently require the extension of the empire of law and the development 
of all international agencies for the aaministration of justice, recom- 
mends: 

I. That a new conference of the nations in continuation of the first 
two conferences at The Hague be held as soon as practicable for the 
following purposes: 

1. To restate the established rules of international law, especially, 
and in the first instance, in the fields affected by the events of the 
recent war. 

2. To formulate and agree upon the amendments and additions, if 
any. to the rules of international law shown to be necessary; or 
useful by the events of the war and the changes in the conditions 
of international life and intercourse which have followed the war. 

3. To endeavor to reconcile divergent views and secure general 
agreement upon the rules which have been in difqpute heretoK>re. 

4. To consider the subjects not now adequately regulated by 
international law, but aa to which the interests of international 
justice require that rules of law shall be declared and accepted. 

The resolution was addressed neither to the Council nor to the 
Assembly of the League of Nations. The reference to one or the 
other body was struck from the draft by the Committee, so 
that the resolution, in the form in which it was adopted, was a 
recommendation of the Committee of Jurists, and required no 
action by the League of Nations, any more than the Resolution 
of the Committee in favor of the prompt establishment of the 
Academy of International Law in the Peace Palace at The 
Hague. Through an unfortunate oversight of the Reporter, the 
first resolution in question was submitted to the Council and the 
Assembly of the League by the Appendix of his Report which, 
prepared after the adjournment of the Committee of Jurists, 
was not approved by them. When this error was discovered it 
was too late to correct it, although an attempt was made to do so. 
The resolution therefore went before the Council where it was 
modified in part, and the Assembly where it was rejected in toto. 

Undaunted by this action, Mr. Root saved a part of the orig- 
inal resolution at the Arms Conference, and it may well be that 
the more modest and inconspicuous proposal will carry with it 
and realize the larger purpose. It is to be observed in this con- 
nection that the commission is forbidden by express resolution 
" to review or report upon the rules or declarations relating to 
submarines or the use of noxious gases and chemicals " adopted 
by five of the Powers in the Conference. 



INIBENATIONAL LAW. 349 

Lord LyndhuTst, the one American by birth to hold the Lord 
High Chancellorship of Great Britain, is reported to have said 
that in choosing the judges for the English bench^ he first found 
a gentleman and if he knew a little law '^ it did not hurt/' It is 
to be hoped that in selecting members of conferences the new 
diplomacy may choose an American to his finger-tips with the 
certainty bom of experience, that a knowledge of international 
law will assuredly help. It should also be said, in behalf of 
Mr. Hughes, that it does not hurt a Secretary of State to be a 
lawyer. 

The Conference on the Limitation of Armament and Far 
Eastern Questions has restored the prestige of the United States 
in international affairs and assured it the moral leadership of 
the world. 

IV. Conference of Washington on the Tacna and Arica 

Controversy. 

At the moment of preparing this report the City of Washing- 
ton is again a centre to which the eyes of statesmen — ^this time 
of the Americas — are anxiously and inquiringly turned. The 
representatives of Chile and Peru are appropriately in session 
in the building of the Pan American Union in an attempt, which 
assuredly all Americans hope will be successful, to remove from 
the foreign relations of their respective countries the controversy 
over the disposition of the provinces of Tacna and Arica. For 
present purposes it will sufiice to say that the Second Article of 
the treaty of Ancon of October 20, 1883, ending the war between 
Chile and Peru, which had lasted from 1879 to 1882, provides 
that 

The territory of the provinces of Tacna and Arica. . . shall remain in 
the possession of Chile, and subject to Chilean laws and authorities, dur- 
ing the term of ten years, to be reckoned from the ratification of the 
present treaty of peace. At the expiration of that term a plebiscite shall, 
by means of a popular vote, decide whether the territory of the provinces 
referred to is to remain definitely under the dominion and sovereignty 
of Chile, or continue to form a part of the Peruvian territory. Which- 
ever of the two countries in whose favor the provinces of Tacna and 
Arica are to be annexed shall pay to the other 10,000.000 pesos in Chilean 
silver currency, or Peruvian solee of the same standard and weight. 

A special protocol, which shall be considered as an integral part of 
the present treatv, will establish the form in which the plebiscite is to 
take place, and the conditions and periods of payment ot the 10,000,010 
pesos by the country which remains in possession of the provinces of 
Tacna and Arica.^ 

Your committee feels that it is unwise to make any statement 
concerning the reasons which have delayed the protocol which, 
when agreed to, was to bind the two countries as if it had formed 

^Rose Book of Chile, Washington, 1918, pp. 62-63. 



350 REPORT OF COICMITTBE ON 

an integral part of the original treaty. Your committee feels 
that some statement should be made concerning the matter. 
Therefore it quotes the following paragraph on the subject from 
the eleventh edition of the Encyclopcsdia Britannica which ap- 
peared in 1911, long before the present negotiations: ^ 

The period of ten years originally agreed upon for the Chilean occu- 
pation of these provinces expired in 1894. At that date the peace of 
rem was so seriously disturbed b^ internal troubles that the govern- 
ment was quite unable to take active steps to bring about any solution 
of the matter. After 1894 negotiations between the two governments 
were attempted from time to time, but without any satisfactory results. 
The question hinged to a great extent on the qualification necessary for 
the inhabitants to vote, in the event of a plebiscite being called to decide 
whether Chilean ownership was to be finally established or the provinces 
were to revert to Peruvian sovereignty. Peru proposed that only 
Peruvian residents should be entitled to take part in a popular. vote; 
Chile rejected this proposition, on the ground that all residents in the 
territories in question should nave a voice in the final decision. The 
agreement between Chile and Bolivia, by which the disputed provinces 
were to be handed over to the latter country if Chilean possession was 
recognized, was also a stumbling-block, a strong feeling existed amone 
Peruvians against this proceeding. It was not so much the value oi 
Tacna and Arica that put difficulties in the way of a settlement as the 
fact that the national pride of the Peruvians ill brooked the idea of 
permanently losing all claim to this section of country. 

While the Arms Conference was in session in Washington, 
Chile and Peru took up tiie question of Tacna and Arica. The 
countries in controversy intimated that an invitation to meet in 
Washington would be acceptable. It was extended. Representa- 
tives of Chile and Peru met in the building of the Pan American 
Union on May 15, 1922, at which place and time Secretary 
Hughes delivered an address which states the reasons for the 
meeting, the terms of the invitation and the hopes entertained 
by all men and women of good will of the Americas. It is, 
therefore, given in full : 

It is with the utmost gratification that I extend to you a cordial 
welcome to this Capital and felicitate you upon this meeting for the 
purpose of ending a long-standing controversy. You will find here. I 
trust, an atmosphere congenial to your endeavors and you cannot fail 
to be impressed with the deep interest that we feel in all that pertains 
to the welfare of Chile and Peru and of all our sister Republics in 
Latin America. This meeting place, devoted to Pan-American friend- 
ship, has the most inspiring memories. What has been accomplished 
within these walls must remain a lasting assurance that the most diffi- 
cult problems can be solved when nations take counsel of the interests 
of peace and seek with united purpose a better understanding. Here 
we have witnessed the astounding spectacle of great naval powers 
voluntarily agreeing to scrap a large proportion of their capital diiips 
and to end the most serious competition in naval armament, thus reliev- 
ing their peoples of an intolerable burden and afifording convincing 
proof of the absence of policies of aggression. Here, nations especially 



^ Encycloposdia Britannica, 1911, Vol. XXI, p. 277. 



INTERNATIONAL LAW. 351 

interested in the Far East have been able to diapel apprehenaion and 
diatnut and find through their common endeavors a basis for amit^ 
and cooperation. 

Surely this is an auspicious time to heal old wounds and to end what* 
ever differences may exist in Latin America, and there could be no more 
agreeable harbinger of a better day and of a lasting peace upon this 
hemisphere than the convening of this conference of me representatives 
of the Republics of Chile and Peru. I confpratulate you upon the high 
purpose and the noble and conciliatory spirit whidi nave animated both 
Governments in the approach to this meeting and upon the earnest 
desire which both have manifested that through this friendly inter- 
course a mutually satisfactory settlement may be found. Permit me to 
express not only the hope but the firm conviction that your sealous 
and well-directed endeavors dominated by this friendly spirit will be 
crowned with complete success. 

It may be appropriate for me to repeat the terms of the invitation 
extended by the Government of the United States to the Governments 
of Chile and Peru, the acceptance of which has led to this conference. I 
had the honor, on behalf of my Government, of addressing both Gov- 
ernments as follows: 

"The Government of the United States through the courteiy of 
the Ambassadors of Chile and Peru in Washington, has been kept 
informed of the prosress of the recent negotiations carried on 
directly by telegraph between the Governments of Chile and Peni, 
looking toward a settlement of the long-standing controversy with 
respect to the unfulfilled provisions of the Treaty of Ancon. It has 
noted with the greatest pleasure and satisfaction the lofty spirit 
of conciliation which has animated the two Governments, and that 
as a result of these direct exchanges of views, the idea of arbitra- 
tion of the pending difficulties is acceptable in princii)le to both. It 
has also taken note of the suggestion that representatives of the two 
Governments be named to meet in Washington with a view to 
finding the means of settling the difficulties which have divided the 
two countries. 

''Desiring in the interests of American peace and concord to 
assist, in a manner agreeable to both Governments concerned, in 
finding a way to end this long-standing controversy, the Presiaent 
of the United States would be pleased to welcome in Wadiington 
the representatives which the Governments of Chile and Peru may 
see fit to appoint, to the end that such representatives may settle, 
if happily it may be, the existing difficulties, or may arrange for 
the settlement of them by arbitration." 

You have here the privilege and responsibility of exceptional oppor- 
tunity. Perhaps no event has ever been contemplated by the American 
Republics with deeper interest and more fervent hope. The only relief 
for a troubled world is in resort to the processes of reason in lieu of 
those of force. Direct and candid interchanges, a sincere desire to make 
an amicable adjustment, the promotion of mutual imderstanding and 
the determination to avoid unnecessary points of difference in order 
that attention may be centered upon what is fair and practicable — 
these are of the essence of the processes of reason. The pathway to an 
enduring concord and to the prosperity of a mutual helpfulness lies 
open before you. What is done here will have a lasting effect upon the 
security and happiness of all peoples, inasmuch as the success of this 
conference through your agreement will not only demonstrate your 
wisdom and lofty conceptions of duty, but will furnish the world with a 
needed and inspiring example of the practice of peace. 

12 



35^. INTBBNATIONAIi IiAW. 

The Government of the United Statee gives you welcome and God- 
speed. 

Your Standing Committee on International Law believes that 
the world can be saved from its material troubles only by the 
substitution of the rule of law for the rule of force. It sees in 
the achievements of the past year a justification of the resump- 
tion of the orderly processes of development which preceded the 
World War, and which would have prevented its outbreak if good 
faith had kept the upper hand of 

Vaulting ambition, which overleaps itself. 

James Brown S'oott, 
Oeobob Suthbblakd, 
Thomas Burkb, 
Eathbyn Sellers. 



1. 



REPORT 

Of . 

COMMITTEE ON INSURANCE LAW. 

To ih^ American Bar Association: 

The American Bar Association has maintained a committee on 
insurance law for more than 20 years. The creation of the com- 
mittee came through the realization of the Association of the 
conflict and woeful lack of harmony in the laws and rules enacted 
and promulgated in the aeveral states regulating the business of 
insurance. Each state, from time to time in a long series of 
years, had established special laws and regulations which at the 
various times seemed needful. These special laws and depart- 
mental rules in each state were made with little or no regard for 
the laws and rules of other states. They were made with little or 
no comprehension of the business of insurance as being or becomr 
ing an interstate or inter-nation institution whose ramifications 
proceed from a central office throughout the co\intry or through- 
out the world. The result was 40-K)dd sets of patchwork^ of 
inconsistent, conflicting and retaliatory laws and rules, each let- 
tering in its own way tiie spread of operations of a business that 
should be encouraged and left untrammeled except in so far as the 
protection and security of the insuring public call for restriction 
and regulation. If it were possible there should be but one sys- 
tem of rules and regulations for the institution of insurance, now 
so essential an element in all commercial, industrial and domestic 
affairs. 

This committee was impressed with the hampering effect of 
these conflicting state laws on insurance companies, and the 
inefficiency of the state laws in a wholesome control over their 
operations and consequent injury and lack of protection of the 
people insured. Naturally, therefore, the first impulse of the 
committee was to substitute one federal system of regulating laws 
for all companies doing interstate business, to be administered 
by one federal insurance department and the abolition of all state 
'laws and state insurance departments except in so far as such 
state laws and departm^ts might be retained for the regulation 
of insurance companies which confined their operations to the 
state. 

The idea of a federal insurance code and federal insuirance 
department was the subject of extended consideration by the com- ' 
nuttee for several years. All members of the committee seem to 

(363) 



354: &EPOET OF COMMITTEE ON 

have strongly favored a federal code and federal department in 
substitution for all state laws and state departments^ as a matter 
of practical expedience. The members of the committee dis- 
agreed, however, on the power of the Congress to so control the 
operations of insurance companies. Some members of the com- 
mittee considered that as insurance has been declared not within 
the commerce clause of the Constitution, Congress had no such 
power, other members being of opinion that it was within the 
power of Congress. 

Upon a divided report of the committee, the Association re- 
fused to recommend to Congress the enactment of such a federal 
law. This action of the Association was solely upon the ground 
that such a law was not within the powers granted to Congress 
by the Constitution, but with the expressed, clear apprehensions 
of the evils flowing from the operation of the many conflicting 
and inharmonious laws of the several states, and the desire that 
the Associaticm should take some action tending to promote 
harmony between the laws and rules of the several states. 

This committee and the Association have realized that, on ac- 
count of the traditions, historical settings and other peculiarities 
incident to the insurance laws of each state, it would not be 
possible n^w to have an absolute uniform code of regulations 
adopted in every state, or in any considerable number of states. 
Therefore, it was proposed that ^ code should be prepared which 
in whole or in its several parts might be a model whidi the legisla- 
tures of the several states may follow in any amendments, 
revisions or codifications of the laws. The Committee on the 
District of Columbia of the National Senate then had under 
consideration the subject of a code of insurance laws of the 
District of Columbia. In a conference of the Senate Committee 
and this committee, the Senate Committee urged that the Ameri- 
can Bar Association prepare a code of insurance regulations 
which might be a model for the several states, and which the 
Congress might enact for the District of Columbia. Thereupon 
the Association directed this committee to prepare such code. 
After deliberations extending over several years, during which 
five several printed tentative drafts were published, criticized, 
changed and revised, the committee submitted its code to the 
Association. The Association adopted it and recommended it 
as a guide in such legislation in the several states, and instructed 
this committee to submit it to the Congress and urge its enactmenf 
into law for the regulation of insurance in the District of 
Columbia.. 

The bill was introduced in the Sixty-sixth Congress and was 
discliBfled by the Senate Committee on the District of Columbia, 
but on account of other matters of more momentous importance 
oonsideration of the bill was deferred and no action was taken. 



INSUBAKOB LAW. 355 

The same bill was intioduced in the Sixty-Seyenth Congress 
where it is pending as Senate Bill No. 2229^, by Senator Pomerene. 
This conmuttee has no knowledge of any objection being urged 
against the code since its adoption by the Association^ or of any 
opposition to the bill pending in Congress^ and the committee has 
been led to believe that it would be enacted into law so soon as 
other graver matters may permit of attention to it by Congress. 

The code has fulfilled the purpose of this committee, and of 
the Association, for it has been used as a guide and, to some 
extent, as a model for those interested in preparing and consider- 
ing insurance codes and in the preparation and consideration of 
bifis regulating some particular subjects or phases of insurance. 

On behalf of the committee on insurance law, I move that the 
committee be instructed to continue furnishing copies of the 
code and information relating to it to those interested in such 
legislation in the several states, and that the committee urge upon 
the Congress the enactment of the code into law for the regulation 
of insurance in the District of Columbia. 

A. I. VORYS, 

Ashley Cockrill, 
_ James C. Jones, 

Jakes B. Kerr, 

SOOTT M. liOFTIN. 



OF THB 

STANDING COMMITTEE ON JURISPRUDENCE AND LAW 

REFORM. 

To the American Bar Assodaiion: 

Your Committee on Jurisprudence and Law Reform respect- 
fully reports as follows : 

There are bills pending in Congress upon six subjects which 
have been considered by this committee and which have been in 
various forms considered by the Association. These are as 
follows : 

1. Thb Bill Bblatiko to Dsolaeatoby Judghbkts. 

This subject was dealt with in our reports of 1920 and 1921. 
After very dareful consideration of the subject^ and conference 
with other members of the Association, we came to the conclusion 
that the bill originally proposed by the committee and of which a 
copy (Exhibit C) is annexed to our report for 1921 should be 
amended and we prepared an amendment which is embodied in 
H. R. 10143. A copy is annexed marked A. This was introduced 
in the House of Representatives by Mr. Moores, of Indiana, who 
is a member of the committee. The subject was very carefully 
considered at the hearings before the Judiciary Committee of the 
Senate, February 20, 1922, and the Judiciary Committee of the 
House on the following day. Some of the Senators pointed out 
that by legislation in some of the states, or by local practice, some 
of the objects to be secured by the bill could be obtained under 
the existing practice. But it is clear that there are many bene- 
ficial purposes subserved by this practice of rendering declaratory 
judgments in countries where it prevails, which could not be 
obtained under any practice now existing in the United States. 
We have pointed out this to the Judiciary Committee and annex 
a brief statement of some of them to this report, marked B. 

2. Writs of Ebbor and Appeals. 

The bill on this subject abolishing writs of error and giving 
the remedy by appeal in all cases where there is a right of review, 
has been amended by the Judiciary Committee of the Senate and 

(356) 



jrUBIBPBUDBNOB AN1> LAW SEFOBK. 357 

as amended has been favorably reported. We annex a copy of the 
bill as reported to the Senate, marked C. 

8. Rbmoval of Casbs to thb Federal Courts. 

This subject has been under consideration by the Association 
since 1919 and is dealt with in the report of the committee to 
suggest remedies, etc, which was presented in 1919. The bill 
recommended by the committee in 1921 is Exhibit A annexed to 
the report of that year. This subject has elicited much interest, 
owing to the conflict of the decisions in the different circuits. 
There is certainly much ambiguity in the statutes which the 
Supreme Court has said could only be removed by Congress. The 
consideration thus given to the subject has led the committee to 
recommend an amendment to the bill of which a copy was 
reported in 1921. This bill is S. 1011, H. R. 10142. 

When this matter was under consideration by the Judiciary 
Conmaittee of the Senate, they requested this committee to draw a 
bill which should embody in a federal statute^ the rule as to the 
districts in which suits for personal injuries should be brought 
which was adopted during the federal control of railroads. We 
complied with this request and prepared a new section which we 
propose as Section 5d-A to be ineoi^rated in the Judicial Code. 
This amendment has been submitted by us to the Judiciary Com- 
mittee of the Senate and is under consideration by them. 

We annex a copy of this bill in this amended form, marked D. 

4. Treaty Bights of Aliens. 

The bill on this subject which was approved by the Association 
in the year 1920 and of which a copy is annexed to the report for 
that year, was introduced in the Senate by Senator Kellogg and 
is S. 1942. The same subject is dealt with in the Anti-Lynching 
Bill, H. R. 13, which passed the House and is now before the 
Senate. Section 7 of that bill as to the treaty rights of aliens is 
so separable from the subject of lynching, which is the main 
purpoite of the bill, that constitutional objections to federal 
legislation against lynching have no application to the section 
enablinff the federal courts more efficiently to secure the treaty 
rights of aliens. If the bill should be passed, we are of the opinion 
that Section 7, which deals with the latter subject, would be 
valid in any case. There seems no doubt of the power of Congress 
to pass laws enforcing the provisions of valid treaties which are 
dedared by the Constitution to be the supreme law of the land. 

5. Loss OF Civil Bights. 

The bill on this subject, recommended by this committee in 
1921, a copy of which is embodied in our report for that year and 



358 REPOBT OF 8TANDIN0 COMKITTEB OK 

which was approved by the Association, has been introduced in 
the present Congress and is S. 1546, and H. B. 5030. On this 
subject also the committee has had a hearing, but at the date of 
this report no action has been taken in either House* 

6. Pleas op Quilty. 

Senator Nelson has introduced a bill, S. 3245, which would 
facilitate the practice in the federal courts in reference to 
pleas of guilty. In some of the circuits persons accused of crime 
who are willing to plead guilty, are often detained in confine- 
ment for a considerable period before their cases can be brought 
before the court, the plea received and sentence imposed. The 
senator informs us that this bill is modelled from one that is 
enforced in Minnesota which has worked well there. The com- 
mittee at his request have considered the subject and in our 
opinion the bill embodies a desirable reform. 

The new subjects which have been referred to this committee 
during the current year and concerning which no recent action has 
been taken by the Association are as follows : 

1. Fbbs and Expenses in the Federal Courts. 

The committee was led to take up this subject by a speech of 
Senator Norris delivered in the Senate in April, 1922, m which 
he declared that .the expense of litigation in the federal courts 
was much greater than it was in the state courts. He referred to 
declarations by President Taft before he became Chief Justice 
and by Senator Boot in which the expense of litigation was 
referred to as a heavy burden upon the poor, and in which the 
importance of improved procedure was emphasized. These 
declarations were made before the passage of the act which has 
been recommended by the Association and which was approved 
February 26, 1919, C. 48 (Supplement, Barnes Federal Code, 
Chapter 11, Section 1043), and which requires the court to give 
judgment upon the entire record ^^ without regard to technical 
errors, defects, or exceptions which do not affect the substantial 
rights of the parties.'^ Senator Norris did not refer to this act. 
It has undoubtedly diminished the delay and expense in the 
federal courts and as it becomes better understood and more 
efficiently enforced, the advantage will be increased. 

There is one source of expense to litigants in the federal 
courts which is generally absent in the state courts ; that is to say 
in many state courts there are official stenographers paid by the 
public. In the federal courts stenographers are paid by the liti- 
gants. The committee recommended and the Association of 1910 
approved the recommendation of a bill to authorize the appoint-' 



JX7BIBPRTJDSN0B AND LAW BBFORH. 869 

ment of stenographers in the federal courts (Reports, American 
Bar Association, 1909, pp. 585, 605, 608; Ibid., 1910, pp. 622, 
623), their salaries to be paid as those of judges are paid. The 
committee was heard before the Judiciary Committee of Con- 
gress upon this bill. It encountered opposition from the stenog- 
ra]f»hers Union. The representative of that union expressed un- 
willingness to have their compensation determined by the judges. 
So far as we are advised, no action was taken by the Congressional 
Committee on that subject. Our committee has recently re- 
quested the introduction, of the same bill, amended so as to 
conform to the reorganization of the federal courts, and we 
hope in this way to remove one just cause of complaint 

The subject of fees for services rendered by officials in the 
federal courts was then taken up by this committee. It appeared 
that in many states the complaint of the senator that official fees 
were higher in the federal courts than they were in the state 
courts was well founded. (Chapter 17 of Barnes Federal Code, 
pp. 272-289, is entitled ''Fees and Compensation of Officers/' 
Section 1141 leaves to each Circuit Court of Appeals the fixing 
of costs and fees in that courts Section 1145 fixes the fees of 
clerks. Section 1147 fixes the fees of marshals. Fees in bank- 
ruptcy cases are fixed by the Act of July 1, 1898, Sees. 48, 52, 30th 
Stat. 559, Barnes, Sections 9132, 9136.) 

The annual report of the Attorney-General for 

1921, page 145, gives the entire expense of 

the United States Courts at $11,402,808.96. 

On page 144 are the items '' received earnings ^ 

from individual and corporations by United 

States Marshals, Exhibit 6, pp. 422-425. . . $217,429.62. 
''Earnings from individuals and corporations 

of United States District Courts '' $857,289.67. 

The total of the receipts for fees is $1,074,719.29. 

We learn from the Attorney-General that the expenditures thus 
specified " cover the entire expenses of the federal courts.** Pre- 
vious acts which permitted " certain officers to utilize earnings for 
compensation and expenses, have been superseded by the Acts of 
May 28, 1896, and February 26, 1919, all earnings being now 
covered into the Treasury, with the exception of the earnings of 
clerks of United States Circuit Courts of Appeals and certain 
revenues in Alaska which are utilized for court expenses/' 

A bill to diminish the expense of proceedings on appeal and 
writs of error, was proposed by the committee and recommended 
by the Association m 1909 (Beports, American Bar Association, 
1909, pp. 587, 609 ; Ibid., 1910, p. 622). This bill was amended 
in Congress and in its amended form passed and was approved 
February 13, 1911, (35 Stat. 901; Barnes Federal Code, Sec. 



360 BJBPOBT OF STANDING OOICMITTSB ON 

1395). The Attorney-General in his laat report (page 4) states 
that the language of this act as it passed is ambiguous and has 
resulted in much confusioli in the matter of fees and other 
charges. The Attorney-General informed us that Congress has 
attempted no action upon his recommendation for an amendment 
to this statute. Your committee is engaged in examining the 
subject and hopes to be able to aid in removing the ambiguity 
complained of. 

2. Injunctions. 

A bill H. B. 10212, was introduced in the House of Repre- 
sentatives by Mr. Bachaxach, of New Jersey, January 31, 1922. 
This bill provides " that no district or circuit court of the United 
States or judges thereof, shall have jurisdiction to entertain any 
bill ef complaint to suspend or restrain the enforcement, oper^ 
ation or execution of any order made by any administrative board 
or commission in any state, acting under and pursuant to the 
statutes of such state, where such order was made after hearings 
upon notice, nor to entertain jurisdiction of any bill of complaint 
to suspend or restrain the enforcement, operation or execution of 
the statute under which such order was made in anv case where, 
under the statute df that state, provision is made for a judicial 
review of such order upon the law and the facts.'' There is a 
proviso that the bill shall not apply to matters affecting inter- 
state commerce. This subject of injunction was dealt with by the 
committee in 1913. (Reports, American Bar Association, 1913, 
pp. 555, 561, 575 ; Ibid., 1914, pp. 578-584. In these reports the 
committee undertook to vindicate the existing law in reference to 
injunctions and the practice imder it. Without repeating aU 
that was said in these reports^ we quote from Report of 1913, 
Ibid., 1913, pp. 559-561: 

This complaint against injunctions is really the direct reverse of the 
complaint which is also common, that l^al procedure is technical aiui 
dilatory. The procedure in injunction cases is neither. Either party is. 
at liberty to put in any evidence it diooses without retcard to the 
technical rules which prevail in the ordinary trial of causes, and the 
hearing is speedy. The whole arsenal of technical points by which cases 
are often procrastinated is of no avail here. 

The true purpose of an injunction is to prevent irreparable injury. 
This may mean either injury that in the strict sense <d the word eannoi 
in any way be made good, or an injury the consequences of which will 
be such that the damage consequent upon it cannot be accurately 
adjusted, and so cannot oe compensated by any money payment. In 
theory, the injunction is the defense of the weak against the strooff. 
Conditions of society are such that some men have power far greater 
than others. This power may come from their greater wealth. It may 
come from their organization and discipline. But from whatever source 
it is detived, the fact of the power remains. Without the rifikt of 
injunction it would be perfectly possible for such persons to commit 
wrongs against their fellow citisens and then, having attained the object 
they desu'e, sit down and calmly await the result of an action for 



JUBI8FBX7DXNCB AND LAW BEFOBIC. 361 

damagefl. In defendizig such an action, all the delays which are poanble 
under our flystem of iurisprudence would be availed of, every technical 
objection woidd be taken ; every possible appeal would be resorted to. 
In many cases the plaintiff would not have the pecuniary means to 
prosecute the suit to a conclusion; in many others the burden of con- 
testing it would be so great that he would relinquish the contest and the 
aggressor would remain in possession of the field. Under our present 
system, when sudi an injury is threatened, the party who has reason to 
apprehend it may apply to the court and obtain an order immediately 
lomidding the aggressor to commit the wrong and requiring him to 
show cause why he should not be permanently forbidden to commit it 
during the pendency of the suit. The hearing in such a case is prompt. 
The evidence, it is true, is by affidavit and not subject to cross- 
OEamination, but in point of fact, the actual facts of the ease are generally 
presented to the court. Both parties are heard by counsel ^nd the 
court promptly passes upon their rights. In case of doubt, the injtmction 
is refiued. But if the plaintiff has made out a clear case, it is granted. 
The asgressor stiU has the right to a full trial in ordinary course, with 
the ri^t of cross-examination of ^e adversary's witnesses. But in nine 
cases out of ten he does not avail of this right. The injunction has 
defeated his nefarious attempt to injure or destroy some one who for 
some reason he wishes to assail, and he gives up the contest.* 

We cannot close this |>art of our report better than by quoting from 
the language of Mr. Justice Brewer in an address delivered in Brooklyn, 
N. Y^ November 23, 1909. 

" When the choice is between redress or prevention of injury by 
force and by peaceful process, the law is well pleased if the individual 
will consent to waive his nght to the use of force and await its 
action. (In re Debs, 158 U. 8. 583.) , I 

"Government by injunction has been an object of esgy denun^ 
ciation. So far from restricting its power, there never was a time 
when its restricted and vigorous exercise was worth more to the 
nation and for the best interests of all. As population becomes more 
dense, as business interests multiply and crowd eadi other, the 
restraining power of a court of equity is of far greater importance 
than a pimishing power of a criminal law. The best scientific thought 
of the day is along the lines of prevention rather than those of 
cure. We aim to stay the spread of epidemics rather than to 
permit them to run their course and attend solely to the work of 
curing the sick. And shall it be said of the law, which claims to be 
the perfection of reason and to express the highest thought of the 
day, that it no longer aims to prevent the wrong but limits its 
action to the matter of punishment? 

^To take away the eouitable power of restraining wrong is a 
step backward toward barbarism rather than a step forward toward 

a higher civilisation Courts make misCkkes in granting 

injunctions. 8o the^ do in other orders and decrees. Shall the 
judicial power be taken away because of their occasional mi^bakes7 
The argument would lead to the total abolition of Uie judicial 
function.'* 

The actum of the committee expressed in these reports was 
approved by the Association. 

Three hearings have been had upon this bill. At one of these^ 
a member of this committee, Mr. Harriman, attended and pointed 
out the objections to it upon the grounds referred to in these 
previous reports. The Chairman also presented a similar state- 



862 RBPORT OF STANDING OOMMITTBB ON 

* 

ment. After conBiderin^ the gnbject caTefuUy, this committee 
unanimously voted that it disapproved the bill. Information as 
to this vote has been presented to the Judiciary Committee of the 
House which has had the matter under consideration. 

3. Stockholders Suits. 

Complaint has been made to this committee that the law on 
this subject was in an unsatisfactory condition and adapted to 
encourage suits brought in the interest of attorneys and not for 
the real benefit of clients. Your committee still has the subject 
under consideration and will welcome suggestions regarding it 
from members of the Association. 

4. Increasing the Number op Judges in the Supreme Court. 

This subject was dealt with in our last report. A bill has been 
introduced in Congress (S. 3164, H. B. 10479) which undertakes 
to deal with the congestion in the docket of the Supreme Court 
by limitin|r the right of appeal to that tribunal. In effect, under 
the provisions of this bill, the review of decisions, in almost aU 
cases, of any circuit court of appeals would be by certiorari or a 
certificate from the Circuit Court of Appeals. It is understood 
that this bill has the approval of the justices of the Supreme 
Court. 

Your committee has considered this bill and approved it with 
the amendment as to writs of error, before mentioned. 

5. Jurisdiction op the Federal Courts in Actions por 

Personal Injitries. 

Your committee was requested by the Judiciaiy Committee of 
the Senate to draw an act which would put in the form of law, a 
rule similar to that which existed during the period of the federal 
control of railroads. President Severance has joined in the 
request and we have accordingly drawn an amendment which we 
think might be very well added to our bill (H. R. 10142) in 
reference to Bemoval of Causes. A copy of this bill thus amended 
is appended, marked D. The reason given by the committee is 
that ambulance chasers in different parts of the country get hold 
of parties who have been 'injured in railroad accidents, and in 
some way secure jurisdiction over railroads half way across the 
continent from the place they operate, and bring suits. The bad 
effects of this are two-fold — ^first, the defendant is embarrassed 
in having to try its case in a foreign jurisdiction, in many cases a 
great distance from where its witnesses are avidlable ; and^ second, 
it is an imposition upon the foreign jurisdiction to maintain 
courts for the trial of cases that do not arise i^i the district; and 
which have no natural connection therewith* 



JUBISPBUDBNOB AND LAW BBFOBK. SOS 

We recommend for adoption the following resolutions : 

Resolved, That this Aasociation approves the action of the Committee 
on Jurisprudence and Law Reform, detailed in the foregoing report. 

Resolved, That this Association instructs the said conmiittee to con* 
tinue to promote the passage of the bills mentioned in said report, 
which have had the approval of said committee. 

All of which is respectfully submitted. 

Everett P. Wheeler, Chairman, 
Hbxby W. Taft, 
Thomas J. O'Doknsll, 

J. F. LouaHBOROUOH, 

Samuel T. Douglas, 
Egbert P. Shick, 
John B. Hardin, 
Tore Tbigen, 
William Hunter, 
Merrill Moores, 
Luoibn Hugh Alexander, 
Nathan W. MaoChesney, 
Frank H. Noroross, 
Oeorgb E. Beers, 
Edward A. Harrihan, 

Cofnmiitee. 

August 18, 192^. 

Mr. O'Donnell asks that it be distinctly stated that in his 
judgment the Anti-Lynching Bill is unconstitutional and an 
insidious attempt to aggrandise federal power, already grossly 
overgrown. He would prefer that l^slation to protect the treaty 
rights of Aliens should be in a separate bill as recommended by 
the Association. 

The committee was not asked to consider the Anti-Lynchinff 
Bill until it was too late for us to confer upon this subject, and 
the portion of the report relating to it expresses no approval of 
the bill. 

A- 
H. R. 10143. 

A BILL 

• * • • 

To Amend the Judicial Code by Adding a New Section to 

BE Numbered 274D. 

Be ii enacted by the Senate and House of Represeniaiives of the 
United States of America in Congress assembled, Thiat the Judicial Code 
approved March 3^ 1911, is hereby amended by adding after Section 2K740 
to^'eofk a new section to be Dumbisred 274D, as foUows: 

Section 274D (1) In cases of actual controveray in which if suits were 
ijrought the courts of the United States would have jurisdiction, the 
said courts upon petition shall have jurisdiction to declare rights and 
other le^l relations on request of interested parties for such declaration)^ 



S5i REPOBT OF STANDING OOMMITTEB ON 

whether or not further relief is or could be priced, and such declarations 
shall have the force of final decree and be reviewfli>ie as such. 

(2) Further relief based on declaratory decree may be granted whenever 
necessarjr or proper. The application shall be by petition to a court 
having jurisdiction to grant the relief. If the application be deemed 
sufficient the court shall, on reasonable notice, require any adverse party 
whose riffhts have been adjudicated by the declaration, to show cause 
why further relief should not be granted forthwith. 

(3) When a declaration of right or the granting of further relief based 
thereon shall involve the determination of issues of fact triable by a 
jury, such issues may be submitted to a juiy in the form of interroga- 
tories, with proper instructions by the court, whether a general veitliet 
be required or not. 

(4) The Supreme Court may adopt rules for the better enforcement 
and regulation of this provision. 

B. 

CASES IN WHICH THE ENGLISH COUHTS HAVE 
GRANTED DECLARATORY RELIEF.* 

A declaration us to an employer's future rights tmder an agreement 
for service. Thompson Bros. & Co. V9. Amis (1917), a Ch. 211. 

Whether certain debentures issued by a company were valid. In re 
North Eastern Insurance Co. (1919), 1 (jh. 198. 

Declaration to determine whether a payment of £200 per annum " free 
of all duties" was free from income tax. Pratt vs. Gamble (1917), 
2 Ch. 140. Affirmed (1917), 2 Ch. 401. 

Action by a company to have one Green and not one Hopkinson de- 
clared the owner of certain stock therein. In re Indo China Steam 
NavigaUon Co. (1917), 2 Ch. 100. 

Action to determine who were entitled to funds in a company no 
longer of service to the contributors thereto. Robson V9. Attorney- 
General (1917), 2 Ch. 18. 

Action by a riiareholder against the compaziy for a declaration as to 
his share of the profits for certain years. Evling va, Israel ic Oppenheimer 
(1918), 1 Ch. 101. 

Question whether a tenant holding over under a lease for a year and a 
fraction could have his tenancy terminated by a notice expiring on the 
date the tenancy was entered into or on the date it terminated. Croft vt. 
filay (1919), 1 Ch. 277. 

Plaintiff engaged a manager at an annual salary plus commission on 
the ''net profits" of the year. It sought a declaration whether com- 
mission should be on "net profits" before or after excess duty to 
Crown was deducted. Patent Castings Indicate, Lt. vs. Etherington 
(1919), 1 Ch. 306. 

Declaration whether a notice dismissing a teacher and refusing to pay 
further salary was vatid under the circumstances stated. Martin vs. 
Eccldi. Corporation (1919), 1 Ch. 387. 

Husband and wife entered into a separation agreement whereby he 
agreed to pay her £9 every Wednesday. He brings action to determine 
'whether he may deduct income tax from future payments. Wasmuth v$. 
Janes (1918), 2 Ch. 54. 

Action by a purchaser to obtain a declaration that an agreement for 
the sale of a leasehold had been dissolved because the vendor's attorney 

« 

■■■- '■ ■■■■■^» <,,i ■■■i. I I,* 

*Prom Article by Hon. A. J. Vinje, Justice of Wisconsin Supreme 
Court, Marquette, April, 1920, pp. 108-110. 



JDBISPBUIXBNCB AKD UlW BBFOBM. 865 

ia faeiy who made the sale, had become a public enemy. Tingle vt . 
MuUer (1917), 2 Ch. 144. 

A leflKe eeoured a lease of premises for 30 irears to eommence in 1946, 
more than 21 years after its date. The Land Registrar was in doubt as to 
whether it was entitled to registry because it was thought to offend the 
rale against perpetuities. Mann, Crossnan A Paulin Vi, Land Reitfstry 
(1918)» 1 Ch. 202. 

A company's articles provided that ''the instrument appoiiiting a 
prooy shall be deposited at the registered office of the company not lesi 
than two clear days before the day for holding the meeting at which the 
person named in such instrument iNroposep to vote." Held that proxies 
lodged between the dates of an original meeting and the adjournment 
thereof were invalid, the adjourned meeting being merely a continuation 
of the original meeting. McLaren v$, Thompson (1917), 2 Ch. 41. 
Affirmed on appeal (1917), 2 Ch. 261. 

Declaration whether the lessors of certain premises were entitled to 
pasnnent in full for the amount necessary to put leasehold in as good 
condition as the lease stipulated— <the lessee having gone into liquidation, 
or whether lessors must prove for it in liq[uidation and take their pro- 
portionate share. (1919), 1 Ch. 416. 

Declaration as to the meaning of a contract for the sale of two plots 
of land " and buildings, material, etc." Held that the words " etc." did 
not extend to a right of way not mentioned and that the conveyance' 
should exclude it. In re Walmsley & Shaws Contract (1917), 1 Ch. 93. 
A manager hired at an annual yearly salary plus 6% on promts in 
excess of escpenses, interest on preferred and oroinary shares. Held that 
he was entitled to 5% of the excess profits before excess profit duty 
was paid to the crown. William Hollins & Co., Limited V9. Paget 
(1917), 1 Ch. 187. 

Question whether a railroad act authorised a subsequent railway to 
construct its roadbed across a former one by means of an embankment 
or by means of a trestle. Tafif Vale Ry. Co. v$. Cardiff Ry. Co. (1917), 
1 Ch. 299. 

The purchase price of a business to be one-third of the ''net 
profits " for a certain number of years. Held that excess duty to crown 
must be deducted before " net profits" were to be divided, Condran vi. 
Stark (1917), 1 Ch. 639. 

In the third session of the 65th Congress Professor Borchard of Yale 
submitted a brief to the Judiciaiy Committee upon the bill that was then 
pending in reference to Declaratory Judgments. This brief was printed 
and is a very able statement of the argument. We quote one paragraph 
from page 46, which is as follows: 

"Coming now to the numerous questions whidi have involved 
the construction and interpretation of contracts, actions have on 
several occasions been instituted for a \ declaration that a certain 
contract was no longer binding on the plaintiff or was binding on 
the defendant. Among the former of these cases, which seeks a 
negative tleclaration of privilege (absence of duty), the case of 
Societe Maritime et Commerciale vs, Venus Steam Shipping Co. 
(Ltd.) ih a leading one. Here the plaintiff had undertaken by 
contract to load ore on steamers to be fiimiflhed by one L^ the 
alleged assignor of the defendants, for five years. The plaintiffs 
claimed that there was no valid assignment to the defendants, that 
L. was not the defendants' agent, and that there was no novation. 
As the original contract had over a year still to run, and as plaintiffs 
did not wish to break it and subject themselves to an action for 
damages, they availed themselves of the valuable privilege of seek- 
ing from the court a declaration that the contract Wad^ nb longer 



366 JUBIS^EUDEKeB AND LAW BBVOBK. 

binding on them. In making the deelaration sought, Channel, J., 
remarked: (1904) 9 Com. Cas. 289. 

''Showing a neceanty of a decision upon it, I think thesr are 
entitled to a declaration as to whether or not the contract is binding 
upon them. They are not bound at their p«ril to perform it and 
then to be liable to heavy damages for. not performing it for the 
space of the next one and one-half years. If th^ are wrong, they 
would be liable for damiages down to the time of the judgment of* 
the court while* they are refusing to perform; but upon 2ie court 
saying that they were bound, they would then say: ' We will not go 
on with it for the remainder of the time.' I think that is a suflifiient 
reason for making the declaration." 

4 

c. 

REPORT, JUDICIARY COMMITTEE, SENATE, 

APRIL 20, 1922. 

Calbndab No. 633 ; Sbnatb Rbpobt, No. 686. 

Be it enacted, etc^ That the writ of error in cases civil and criminal is 
abolished. All reUef which heretofore could be obtained by writ qf 
error shall hereafter be obtainable by appeal. 

Sec. 2. An appeal mav be taken by serving upon the adverse party 
or his attorney of record, and by filing in Uie. office of the clerk with 
whom the judgment or order appealed from is entered a written notice 
to the effect that the appellant appeals from the judgment or order or, 
from a apecified part Uiereof. No petition of ftJPp^l or allowance of an 
appeal shall be required: Provided however, Tnat before such appeal 
shall become effective, the appellant shall furnish the same security as 
is now provided by Section lOOO of the Revised Statutes of the United 
States in case of writs of error. 

D. 

A BILL 
To Ambnd the Judicial Code. 

Be it enacted by the Senate and HoiLee of RepreeenUUivee of tha 
United State9 of America in Congreee aeeembled. That Sec. 28 of the 
Judicial Code, approved March 3, 1911, is hereby amended by adding 
thereto the following: 

" The district court for the proper district to which the suit in the 
state court is removable is the district court of the United States 
for the judicial district, ^or if such district be divided, for the division 
of the judicial district in which such state court is located. Provi- 
sions, of law describing the district courts of the United States in 
which suits shall be brought do not apply to, nor affect the removal 
jurisdiction of district courts, nor the removability of suits thereto." 
Sbc. 2. The Judicial Code is hereby amended by adding after Section 
53 an additional section to be known as Section 53-A : 

Sbc. 53-A. In suits to recover damages for injuries to the person 
or for the death of any person, the action must be brought either 

(a) In the district in which the plaintiff resided at the time ol the 
injury, or 

(b) In the district in which is located the principal place of 
business of the defendant, or 

(c) In the district in which the injury occurred. 



REPORT 

or THB 

COMMITTEE ON ADMIRALTY AND MARITIME LAW. 

To thf American Bar Assodatian: 

The Committee on Conrts of Admiralty begs leave to report as 
follows : 

On January 3, 1922, the Supreme Court handed down a 
decision in the case of the Western Maid and the Ca/rolinim, 
granting writs of prohibition to prevent United States District \ 
Courts from exercising jurisdiction of proceedings in rem for  
collisions which occurred while the vessels libeled were owned, 
absolutely or pro hac vice, by the United States, and employed 
in the public service. 

The result of this decision is to emphasize the need of a 
statute permitting suits against the Government for collision. 
On the Continent of Europe suit may be brought against the 
Government for torts, and in Great Britain, where a collision 
occurs with a King^s diip, the private suitor may bring an action 
in the ordinary courts against the commanding omcer of the 
ship, and the representative of the Crown appears and defends 
catisa honoris and pays any judgment that may be recovered. 
Here in our Republic the maxim that "The King can do no 
wrong '* is given full force and effect. 

By the Act of March 9, 1920, where a Government vessel is 
employed as a merchant vessel, suit is permitted. For damage 
through the negligence of a war or naval vessel, there is no 
remedy except by a special Act of Congress, and it often takes 
years to secure the necessary legislation. To meet this situation 
a bill was prepared by the Maritime Law Association of the 
United States and introduced at the last session of Congress by 
Mr. Husted of New York (H. R. 6266, 67th Congress, First 
Session). This was reported favorably by the Judiciary Com- 
mittee, but failed of passage. A similar measure is now pending 
in the House. It authorizes suit to be brought against the United 
States in Admiralty for collisions caused by and salvage servibea 
rendered to public vessels belonging to the United S^tes. We 
recommend tiiat the Association approve this bill and authorize 
your Committee to urge its enactment. 

(367) 



368 REPOBT OF COMMITTBB OK 

Two subjects of great importance to the maritime interests of 
this country will be brought before the International Conference 
on Maritime Law, which is expected to reconvene in Brussels 
within the next few months. The last sessions of the Conference 
were held in Brussels in 1909 and 1910. Tweiity-five maritime 
nations, including the United States, attended the conference^ 
and signed two conventions or treaties, one on salvage and the 
other on collisions. The salvage treaty, which did not depart in 
any material respect from our own law, was submitted to the 
Senate and ratified, and on August 1, 1912, Congress passed an 
Act carrying out the provisions of the treaty. 

The other treaty relating to collisions departed radically from 
our law; apportioning damage in case of fault on the part of two 
or more vessels according to the degree of fault, thus adopting 
the rule long in force on the Continent of Europe and abandoning 
the British and American judicium rusticum, by which, in case of 
fault on the part of two colliding vessels, the damages are divided 
equally. This treaty has been ratified by every nation repre- 
sented at the Conference except the United States. The treaty 
was never submitted to the Senate and reposes in the pigeon-holes 
of the Department of State. 

At the Brussels Conference of 1910 projets, or draft treaties, 
on the subject of hypothecations and liens, and also on limitation 
of ship-owners' liaoility, were prepared, and these will come up 
for consideration at the next session of the Conference. At a 
recent meeting of the Maritime Law Association of the United 
States these two draft treaties were considered, and resolutions 
were adopted recommending that our Government send delegates 
to the next meeting of the Brussels Conference, with instructions 
to secure, so far as possible, a reasonable and uniform law for 
limitation of ship owner's liability. This subject has become a 
most important one to the United States, owing to the large 
increase in our merchant marine. It is desirable that there 
should be one uniform law of liability so that, in whatever country 
a ship may be, the owner may know the limit of his liability, and 
not be subject to the chance of the port in which his ship is 
found. 

As to the draft treaty on hypothecations and liens on vessels, 
the Maritime Law Association recommended that our Govern- 
ment should not approve the treaty either in principle or in 
detail. In the opinion of that Association, the subject of liena 
ifi peculiarly a national question, not an international one. Our 
system of liens differs materially from that of other countries, 
and is expressed in tiie Act of Congress passed June 23, 1910, and 
re-enacted in the Merchant Marine Act, 1920, No. 30, sub- 
sections P, Q, B, S and T. 



ADMIBALTY A2SD iCARITIME lAW. 369 

This part of our report is merely for the information of mem- 
bers of the Association. We do not recommend any action 
thereon at this time. 

BoBT. M. Hughes, 
Pitz-Henry Smith, Jh., 
Chaeles C. Burlinoham, 
Harvey D. Godlder, 
Edward J. McCutchbn. 



REPORT 

or THB 

COMMITTEE ON UNIFORM JUDICIAL PROCEDURE. 
To the American Bar Association: 

Recommendations. 

(1) That every member of the Bar Association will imme- 
diately communicate with his Senators and Congressmen request- 
ing a prompt report of H. R. 2377 from the Committee on the 
Judiciary of the House and the same bill S. 2870, introduced by 
Senator Kellogg in the Senate at the present session of Congress. 
While the opposition is energetic a majority is assured. It is 
only necessary for the committees to report. 

(2) That such state bar associationfi as have not already done 
so, be respectfully requested to create state committees with a 
central chairman and a member from each congressional district 
to cooperate with your committee in carrying out the instructions 
of this Association. A form of the resolution will be found Sfl 
an appendix hereto. 

(3) That these state committees shall function by instituting 
independent campaigns with reference to their own Senators and 
Representatives in Congress and otherwise, according to their 
good judgment. Certain statesmen are not only refusing to 
observe the recommendations of their state bar associations, but 
are using their influence to prevent a report by the Judiciary 
Committee, so that a vote may be had on the floor of the Senate 
and House. 

(4) That this committee be continued. 

Report. 

We reported in 1921 that the bill (S. 1214) was introduced 
in the Senate by Senator Frank B. Kellogg, was referred to the 
Committee on the Judiciary and in turn was referred to a sub- 
committee of three composed of Senators Colt (Chairman), 
Dillingham and Walsh of Montana. No action whatever was 
taken by them. Senators Colt and Dillingham kindly expressed 
themselves as favoring the bill. Senator Walsh expressed him- 
self as being opposed to it. A majority of the Judiciary Com- 
mittee and a majority of the Senators were in favor of it. The 

(370) 



UNIFORM JUDICIAL PBOCBDUBB. 871 

earnest and sustained efforts of yonr committee, supported by 
the most influential^ industrial and commercial organizations as 
well as lawyers and judges of national reputation proved im- 
availing. Many state bar associations in formal resolutions re- 
quested the committee t6' report. A copy of the reeolution 
adopted by the bar associations of Illinois, Virginia and Penn- 
sylvania vrill be found as an appendix to this report. The state 
bar associations of California, Georgia, Arkansas, Indiana, Louis- 
iana, Minnesota, Mississippi, Missouri, New Hampshire, North 
Carolina, North Dakota, Ohio, Oregon, Washington, Wisconsin 
and Wyoming also adopted it in substantially the same form. 
Forty-five state bar associations have endorsed the program. 
The waif to bring dboui the passage of the bill is to respectfully 
but earnestly impress upon the Senate that the judges and lawyers 
as well as commerce, expect a report. It is diifficult to believe that 
the request will not be respected. 

The Executive Committee at its mid-winter meeting adopted 
the following resolution : 

Wbibbas, the American Bar Association, after due deliberation, has 
for nine years in succession unanimously endorsed a Bill having for its 
purpose the modernisation and uniformity of the procedwe and practice 
of the Federal Courts; and 

Whereas, the said Bill has been introduced in each Conffrees during 
said period and has been formally referred to the Judiciary Committees 
of the Senate and House respectively; and 

Whereas, the said Bill, with one exception, has been withheld in com- 
mittee instead of being reported, although a majority of the members 
of the Judiciaiy Conmuttees and a large majority of Senators and 
Representatives have expressed themselves as favorable to the measure; 
ana 

. Whereas, a proper respect for the request of a substantial number of 
citizens ana the petition of the organized Bar of America renders it only 
common justice that the Bill be reported out so that the members of 
the respective Houses may register their vote upon the same ; 

Resolved^ that the £2xecutive Committee of the American Bar Aaao- 
ciation, in regular session assembled, on this 9th day of January, 1922, 
respectfully requests the Judicial^ Committee of the United States 
Senate to make a report upon the said Bill No. S. 2870, introduced by 
Honorable Frank B. Kellogg at the request of the American Bar 
Association. 

Re^olped, further, that a copy of this resolution be sent by mail to the 
President of the Senate and the Speaker of the House, and to each 
member of the Judiciary Committees of the Senate and House 
respectively. 

Copies were sent as directed which was followed by hearings 
before. the House Judiciary Committee on February 14 and 21 
and March 7, and before the Senate Judiciary Committee on 
Febmary 20. Neither of these committees has reported (June 
I, 1922). The proceedings before the House Committee have 
been printed and are being distributed. Members are requested 
to apply to their Congressmim for copies describing the same as 



372 BBFORT OF COMHITTSB ON 

*^ Hearing before the House Jddiciary Oommitteey Si3±r-6eTenih 
Congress^ Second Session on H. R 237? and H. B. 90, Serial 3S, 
February 14 and March 7, 1922/' The Senate proceeding was 
too badly reported by the stenographer to be of service. 

A bill^ known as ^^H. K. 90/' introduced by Congressman 
Logan^ sought to continue the present federal practice in an 
aggravated form and deserves ilie opposition it has encountered. 
It is in the following form : 

A BILL 

To Makb the Pbaotiob in the Unitkd States Distriot 
Courts Conform to the Praoticb op the State Courts 
OF THE State in Which the Unitbd States District 
Courts Are Held. 

Be it enacted by the Senate and House of Rejjreeentatives of the 
United States of America m Congress assembled. That the practice of 
the United States district courts m the drawing, impanehnfc, publishing 
of the list of jurors and the charge of the judge to the juiy shall 
conform in all respects as nearly as can be done to the practice of the 
highest court of the State in which jurors are used in which the 
United States court is held. 

Sbc. 2. That it diaU be the duty of the judge in all cases, civil and 
criminal, to have the testimony of the witneans taken down by s 
stenographer. 

Sic. 3. That on all appeals to the Circuit Court of Appeals in civil 
and criminal cases the practice followed on appeals to the highest court 
of the Stato in which the United States distnct court is sitting shall be 
followed. 

Sac. 4.— That the provisions of this Act diall be held to be mandatory 
and not directory. 

The bill H. R. 2377 and S. 3870 was favorably reported in 
1017 under the leadership of Senator George Sutherland of 
ntah^ but too late for action at that session. The names of the 
few Senators who opposed it are given in ^* Appendix B.'' 

The Present Session. 

(a) in the senate. 

As soon as the present session of Congress convened^ the usual 
conference was held in Washington with friends of the American 
Bar Association's program. Senator Frank B. Kellogg was 
selected to become the patron and he promptly introduced the 
bill. A hearing was had on February 20^ 1922, before a sub- 
committee composed of Senator Ernst, Chairman, and Senators 
Cummins, Shoitridge, Shields and Ashurst. There were also 

E resent Senators Colt, Overman and Spencer, who favored the 
ill, and Thomas J. Walsh of Montana who opposed it h$ca/use 
of ihe inconvenience a change in pleading and procedure would 
oflMMe io lawyers. This is dealt witii later. 



unifosk judicial pbooxdubb. 878 

(b) in the house. 

Chairman Andrew J. Volstead introduced the bill (H. B. 
8377). There were three hearings, viz. : February 14 and 21 and 
March 7. The Committee now has the bill under consideration. 
The members of the Association will greatly aid by communicate 
ing with their respective Senators and Congressmen and particu* 
larly with the members of the two Judiciary Committees of the 
Senate and House. 

The personnel of the present Senate Judiciary Committee is as 
follows : 

Enute Nklson, of Minnesota, Chairman. 
William P. Dillingham, of Vermont. 
Frank B. Bbanbeobb, of Connecticut. 
William K Borah, of Idaho. 
Albert B. Cummins, of Iowa. 
LbBaron B. Colt, of Bhode Island. 
Thomas Sterling, of South Dakota. 
Oeorgb W« Norris, of Nebraska. 
Richard P. Ernst, of Kentucky. 
Samuel M. Shortridge, of California. 
Charles A. Culberson, of Texas. 
Leb S. Overman, of North Carolina. 
James A. Besd, of Missouri. 
Henry F. Ashurst, of Arizona. 
John K. Shields, of Tennessee. 
Thomas J. Walsh, of Montana. 

The House Judiciary Committee is as follows : 

Andrew J, Volstead, of Minnesota, Chairman. 

George S. Graham, of Pennsylvania. 

L. C. Dter, of Missouri. 

Joseph Walsh, of Massachusetts. 

C. Prank Reavis, of Nebraska. 

David 6. Classon, of Wisconsin. 

W. D. Boies, of Iowa. 

Charles A. Christopherson, of South Dakota. 

Richard Yates, of Illinois. 

Wells Goodykoontz, of West Virginia. 

Ira G. Herset, of Maine. 

Walter M. Chandler, of New York. 

Israel M. Foster, of Ohio. 

Earl C. Michener, of Michigan. 

Andrew J. Hickby, of Indiana. 

Robert Y. Thomas, Jr., of Kentucky. 

Hatton W. Sumners, of Texas. 



874 BSP0KI OF GOMMITTBB ON 

Andrew J. Montagub, of Virginia. 

Jahbs W. Wi8By of Georgia. 

John Tillman^ of Arkansas. 

Fbed H. Dominiok, of South Carolina. 

Former Attorney-General McEeynolds advocated the bill in his 
official report, and former Attorney-General Gregory wrote to 
Senator Overman of the Judiciary Committee, the patron of the 
bill in a prior session, commending it and seeking its passage! 
Former Attorney-General Palmer was one of the original advo- 
cates of rules of court Chairman Nelson of the Senate and 
Chairman Volstead of the House Judiciary Committee are strong 
advocates of the bill. Both Senate and House favor it by a large 
majority. Both Senators Overman and Culberson, the senior 
minority members, have been patrons of the bill. Senator Cul- 
berson's letter to the committee was published in 1919 report ol 
the committee. 

Bbasons fob Dblat. 

Legislative conditions in 1922 at Washington have not mate- 
rially changed. Senators and members of the House who favored 
the measure and have frankly so expressed themselves to the 
great encouragement of your committee, have been good enough 
to promise to give immediate attention when a report is made 
by the Judiciary Committee, They have felt obliged to devote 
their time to special public matters confided to their individual 
care to the extent that they have not been able to give this bill the 
individual attention hoped for. Otherwise it is believed the bill 
would have been reported out and passed regardless of a certiiin 
individual opposition that has always been and always will be 
opposed to it. The influence of the American Bar Association 
has not been felt in Washington during the past years to the 
extent that it is at present. There seems to be a growing realiza- 
tion of the determination of the lawyers to perfect the administra- 
tion of justice in America. " In view of the criticism of delay 
by the Senate Judiciary Committee it will serve a purpose to 
name the personnel of your Committee on Uniform Judicial Pro- 
cedure, other than the present members, who have presented 
the American Bar Association's recommendation to Congress: 
William B. Hornblower, Louis D. Brandeis, Joseph N. Teal, 
Lawrence Maxwell, William Howard Taft, C. A. Severance and 
Jno. P. Briscoe. 

Aid op State Bae Associations, 

Your committee is deeply gratified to be able to report the 
assistance and sympathy it is receiving from State Bar Associa- 
tions. Many of them have adopted the resolution first passed by 



UNIFORM JUDICIAL PROCBDUKE. 375 

the Pennsylvaiiia Bar Association in 1915 (Appendix C) creat* 
ing a committee of one member from each Congressional District 
with a central chairman. These state committees co-operate en- 
thnsiastically and patriotically and make it possible to present 
perscmally to a greater portion of the Bar as well as to Congress 
the merits of the effort to modernize the procedure of the courts 
and make possible a greater certainty of justice in America. It 
is beliveed that far better results can be obtained in this way in 
inspiring a greater indlTidual participation ; in showing the great 
merit of uniformity of procedure and interpretation as well as of 
lawy and in impressing upon Congress the time-honored truth 
that '' justice is the greatest interest of man on earth ^' and that 
its proper administration ought to be a first, instead of a last 
consideration on the part of the Legislative Department of 
Government. 

As OUT eflPorts at Washington must continue another year, your 
committee again sets down some familiar facts. 

The Purpose of the Bill. 

The exact words of the bill will be found in " Appendix A " to 
this report. It is the same bill that ha^ been introduced regularly 
for nine years. 

The purpose and effect of the bill is to give to the Supreme 
Court of the United States the authority to make rules governing 
the entire procedure in cases at law to the same extent that it 
now has power to regulate the procedure in equity and admiralty 
and the bankruptcy courts. Nothing novel is involved. 

The Only Legislation Needed. The Bench and Bar 

Will Do the Rest. 

This short bill is all the legislation at present required. To 
the student and the thoughtful man it is the key that will unlock 
the door to a new era of scientific judicial relations. It wUl set 
the judges and lawyers free to perfect the machinery of the courts 
for which they are held solely responsible by laymen. It is the 
principle adopted by England more than fifty years ago. The 
united Bench and Bar will cooperate in first constructing and 
then in gradually perfecting a simple, correlated, scientific system 
of rules of procedure and practice in lieu of the present com- 
plicated ^^ federal practice.^' It is intended that this system of 
rules Ab1\ embrace all the merits and none of the vices of both 
the " common law ^^ and '* code " pleading. Its merit will be a 
patriotic effort to administer, instead of impeding justice, by 
the lawyer who is now sworn to uphold all procedural statutes, 
olikough they obstruct jusUce. This is reaily the crux of the 



376 BBPOBT OF COMICITTBE ON 

plan, f or judicature would then command the aid and eympathy 
of the lawyers instead of an enforced hostility. Moreover, the 
criticisms of laymen would be directed in a harmless manner to a 
personally responsible and responsiYe agency, ready to afford 
instant relief against procedurai hardships. The Judge would 
f solve procedural difiSculties by seeing to it that the case is brought 

speedily to issue on its merits through timely amendments to the 
pleadings as recommended or as may appear necessary. This is 
the way it has always been done in admiralty and is now done in 
equity and no reason has been shown why it should not be also 
done on the law side, except the one given by a Senaior thai leanp- 
ing the new system might inconvenience someone I 

The Origin and End op Confobmitt (S. 8914 E. S.). 

It will be helpful to be mindful of the history and evolution of 
the present federal practice. The idea of conforming to the prac- 
tice of each state, we are told by the Supreme Court (Bk. w. Hal- 
stead, 10 Wheat. 51-59, 6 L. ed. 264, 265), was induced by the 
mistaken theory that '' state systems then in actual operation, well 
known and understood and the propriety and expediency of adopt- 
ing which they would well judge of and determine,^' would con- 
tinue. Constant, unscientific legislation finally created a condi- 
tion that caused the Supreme Court to declare tiiat, ^' To conform 
to such statutes of a state would unnecessarily encumber the ad- 
ministration of the law as well as tend to defeat the ends of Jus- 
tice in the national Tribunals.^' (Bk. vs. Hdstead, Supra^) 
Thereupon followed legislative amendments and judicial rules 
until ^Mexican Ry. Co. vs. Pinckney, 149 U. S. 205, 7) an entire 
control of the procedure, after the judgment is entered, and fifty- 
odd notable exceptions to conformity (See Appendix E) have 
created a new and distinct body of unrelated procedure known 
as *' federal practice/' To the average lawyer it is Sanskrit; to 
the experienced federal practitioner it is a monopoly; to the 
author of text books on federal practice it is a golden harvest. 

A Beplt to Certain Objections. 

While objections are rare, it will serve a usef id purpose to make 
reply to the few offered in the Senate to the Bar Association's 
program. 

They seem to revolve around the political fear of inconvenient 
ing lawyers, instead of facilitating the administration of Justice 
and benefiting litigants. 

One objection, was to any change in the federal or state prao- 
tice at all because some lawyers might be inconvenienced in having 
to learn a new system. The answer is that the lawyers have not 



UNIFOBM JUDICIAL PBOCEDUBJB. 877 

sunk so low that they would put their personal comfort or adyan* 
tage or eyen their liyes ahead of the sacred duty of assuring a rea- 
sonable certainty of justice or of improving their noble and re- 
sponsible profession. Viewing it in a lighter sense, it as if one 
rebelled against the laws of sanitation because of the trouble of 
takinff a bath. The buffers hwve accepted and are profiting by a 
complete reorgamzaiion of their business Lawyers have suffi- 
ciently demonstrated that they are equally as patriotic. 

« 

Thsbb Will Be Littls to Learn. 

The second objection was that the small pracHtioner and the 
country lawyer could not afford to learn the new system for the 
few cases he would command. This connotes a spirit of selfish- 
ness and lack of patriotism unjust to the lawyers of small pra(>- 
tice, who have always stood for the best in American life and its 
advancement because they had the time as well as the disposition 
to give thought to purely public matters. Their voice has been 
oftener heard upon the Hustings than that of any other vocation. 
But the objectioir will be accepted with a grain of humor by ac- 
tive practitioners in the Admiralty, Bankruptcy and Eauity 
Courts. There will be but little to learn in the simple correlated 
system of rules that will be prepared by the United Sta>tes Su- 

Sreme Court with the aid and suggestions of lawyers and judges, 
[oreover, all classes of lawyers wiU start upon the same level and 
all will have had an opportunity to participate in its preparation 
and thus become familiar at first hand with its every detail. The 
objection is likewise a reflection upon the ability or the good 
intention of America's Oreat Tribunal. There will be no techni- 
calities and no pitfalls to avoid. The Statute expressly provides 
that the Supreme Court shall see to that. The English did it in 
1873 without inconvenience and to their great satisfaction. There 
will be few to deny tiiat American lawyers can do as much, even 
though they be inconvenienced. American lawyers^ and judges 
have been so long harassed by a technical and difficult court 
procedure, that requires intense studfi and great familiarity, that 
some have lost all sense of the possibility of a perfectly simple 
procedure. 

The Small Practitionkb Will Pbopit. 

But it is manifest that the small practitioner will be substan- 
tially benefited because, with a uniform system of simple court- 
made rules, he will find the door of no federal court closed in his 
face and will no longer need the association of one of the expert 
fedetal court practitioners now found at every Bar. They will 
start in together with the new system. It is the experts who 



378 BBPOBT OF COHMITTBE ON 

would' be expected to oppose this bill upon selfish groiinds bnt 
they have been too patriotic to do it. The objection is as unworthy 
as it is unfounded because it places the small practitioner in the 
attitude of being willing to defeat improvement in the administrar 
tion of justice for the sake of his personal convenience or profit, 
as has been pointed out, a sentiment that we feel assured will b^ 
promptly repudiated when brought to their attention. 

Uniformipy Will Be Made Possible and Attractive. 

Another objection is that attention was first directed to , the 
improvement of the procedure of the federal courts instead of to 
that of the state courts. It is obvious that the federal courts were 
iirst given consideration by the Bar for profoundly logical reasons 
that will now be set out. (a) The conceded failure of the efiForts 
of the fo.deral courts to conform to the pra( tice of the state courts 
(Bank t;^. Halstead, Supra) demonstrated the necessity for a 
change, (b) A second and greater reason is that a simple scien- 
tific correlated system of rules, such as will be prepared and 
promulgated by the Supreme Court of the United States for use 
in the federal district courts, will prove an attractive model for 
the respective states to adopt for their courts. 

The Benefits to Be Derived. 

The benefits to be derived from this course may be summed 
up as follows, viz. : (1) A modernized, simplified, scientific, cor- 
related system of federal procedure meeting the approval of the 
Federal Supreme Court and participated in by the judges and 
lawyers. (2) The improvement of state court procedure through 
the adoption of the federal system as a modeU (3) The posai- 
bility and the probability of state uniformity through the same 
course. (4) The institution of court rules in lieu of the statutory 
or common law procedure or common law procedure modified by 
statute, and (5) the foundation for fixed interstate judicial re- 
lations, as permanent and correlated as interstate commercial 
relations. (6) The advantage of the personal participation of 
the lawyers and judges in the creation and gradual perfecting of 
a scientific system of rules. (7) The certainty of immediately 
detecting an imperfection and the promptness with which it can 
be corrected. (8) The doing away with the long time now nec- 
essary for the simplest relief at the hands of Congress because 
of the multitude of other business pressing for attention upon 
that great body of statesmen. (9) The doing away with the force 
of law now possessed by every procedural statute and the substitu- 
tion therefor of a system of flexible judge-made rules^ not liable 
to reversible error if justice be done by the judgment entered. 



UKIFOBM JUDICUL PROCEDUBB. 879 

(10) It is the only way that nation-wide uniformity is poflsible, 
and yet not compulsory, the psychology of which is important 
where state pride is an element. (11) It will awaken a keen sense 
of responsibility and a new and an unselfish participation on the 
part of the members of the Bench and Bar. (12) It will create 
an equable diYision of power and duty between the legislative and 
judicial departments of government. 

An Analysis of thb Effbct of the Statutb. 

The trouble with the procedure of the courts is due to the fact 
that coordination between these two departments of government 
has been destroyed by exclusive legislative control. The proposed 
bill would vest in the Supreme Court the exclusive power to pre- 
pare for the trial courts all necessary rules and regulations and 
gradually perfect them. It divides all judicial procedure into two 
dasses, viz.: (a) jurisdictional and fundamental matters and 
general procedure and (b) the rules of practice directing the 
manner of bringing parties into court and the course of the court 
thereafter. The first class goes to the very foundation of the 
matter and may aptly be denominated the legal machine through 
which justice is to be administered, as distinguished from the 
actual operation thereof and lies exclusively with the legislative 
department. It prescribes what the courts may do, who shall be 
the parties participating, and fixes the rules of evidence and all 
important matters of procedure. The second concerns only the 
practice, the manner in which these things shall be done, that is 
the details of their practical operation. Concisely stated, the first 
or legislative class provides what the courts may do, while the 
second or judicial class regulates how they shall do it. It is de- 
sired to he emphasized that the statute mil necessitate no aitera- 
tion of the present procedure upon any jurisdictional or fvnddr 
mental matter; that the Congress can repeal it at its pleasure and 
that the proposed rules tvill not have the effect of a statute. 

Post Bellum Couet Buhdens. 

Its predictions having been already partially vindicated, your 
committee asks permission to again repeat a portion of its 1918 
report, by way of accentuating the necessity for prompt legislative 
action in simplifying the procedure of the courts. Additional 
judges wiU partially but they cannot wholly relieve the situation. 

" American courts face substantially increased tasks and re- 
sponsibilities growing out of the war and the hasty preparation 
therefor, as well as from new theories that may become perma- 
nently engrafted, that must be expeditiously and properly met 



880 ESPORT OP COMMITHEB ON 

immediately upon the declaration of peace. There will arise 
enormous problems of reconstructing industrial, social and polit- 
ical conditions and the judicial machinery of the government 
should be prepared to meet the extraordinary stress that will be 
put upon it as soon as peace is declared. For that reason the 
necessary legislation should not await the actual coming of peace. 
Moreover, there ia much to be done after Congress has acted. 
England is alive to the burden of this new responsibility. Justice 
as well as liberty must be assured to America. They are coordi- 
nate elements in a democracy. From the neglect of either will 
follow governmental difficulties and eventuiu disaster. Mani- 
festly, if the courts are not prepared to cope with the demands 
now made upon them they must dismally fail under an additicmal 
strain.'^ 

For twelve yeara Con^ss has ignored the matured recom- 
mendation of the organized judges and lawyers looking to a 
scientific, more economical and simple court procedure. The 
great commercial and civic organizations have manifested their 
warm sympathy and support. It remains for the lawyers to make 
their influence felt, and indeed become persuasive. They and not 
Congress are held responsible for the present unsatisfactory ad- 
ministration of jufitice. The committee hopefully appeals to the 
lawyers to act. 

The Judicial Section. 

As one contemplates the hundreds of volumes of judicial opin- 
ions annually added to the body of American law, the importance 
of a regular convention of Appellate judges — the men who write 
these opinions — ^becomes most impressive for it means a concert 
of action looking to a gradual but certain advancement and a pos- 
sible uniformity well worth any effort. For the time being the 
appellate judges of every state and federal court meet in the 
conference room. It is the only opportunity for a personal inter- 
state exchange of views. The judges are patriotically doing their 
part, often at a material sacrifice of their much needed vacation 
period and at a personal expense they can ill afford. With the 
hope of impressing the thought, the committee begs leave to 
repeat a part of its last year's report. 

The substantial handicap of travel expense ia being gradually 
overcome through state appropriations for that purpose. Vir- 
ginia appropriates annually $250, and it is possible that several 
other states are doing likewise. It is earnestly hoped that every 
state will make this appropriation. As we have repeatedly said 
such an appropriation is a small premium indeed to pay for 
insurance against diverse judicial opinions; against federal usur^ 
pation of states' rights in the effort to av<nd convict; for the 



UNIFORM JUDICIAL PBOCBDUBB. 881 

promise of uniformity and for the comtant improvement in 
jurisprudence assured by an annual convention of appellate, fed- 
eral and state judges. The administration of a reasonable cer- 
tainty of justice is a matter of evolution. From the crude ** log 
cabin '' procedure of the pioneers {here has been developed the 
present body of distinctive American law and procedure. That 
this progress may continue scientifically and speedily, the judges 
— ^as judges — ^have been called to cooperate with the lawyers in 
their annual deliberations. Thus there has come into existence 
the Judicial Section — the Annual Conference of appellate, federal 
and state judges. 

BespectfuUy submitted, 

Thomas W. Shblton, 
Jacob M. Dickinson, 
Frank Irvins, 
Prb©erick W. Lbhmank, 
Jbsse a. Miller. 



APPENDIX A. 

A BILL (S. 2870, H. B. 2377). 
To Authorize the Supreme Court to Prescribe Forks and 

SULEB, AND ObNBRALLY TO BbQULATB PlEAOINQ, PrOOI»- 

DURE, AND Practice on the Cohmon-Law Side of the 
F^ERAL Courts. 

Be it enacted by the Senate and House of RepresefUatives of the 
United States of America in Congress assenU>led, That the Supreme 
Court shall have the power to preseribe, from time to time and in any 
manner* the forms of writes and all other process, the mode uad manner 
ol framing; and fiUng proceedings and pleadings; of giving notice and 
serving writs and process of all kinds; of taking and obtaining evidence; 
drawing up, entenng, and enrolling orders; and generaQv to regulate 
and prescribe by rule the forms for and the kind and character oif the 
entire pleading, practice, and procedure to be used in all actions, motions, 
and proceedings at law of whatever nature by the district courts of the 
United States and the courts of the District of Columbia. Thai m 
prescribing such ndes the Supreme Court shall have regard to the 
simplifieation of the system of pleading, practice, and procedure in 
eaia courts, so as to promote the speedy determination of Utigatiom on 
the merits* 

8k. 2. That when and as the rules of the court herein authorised shall 
be promulgated, all laws in conflict therewith shall be and become of no 
further force and effect. 



382 RBPORT OF COMMITTBE ON 

APPENDIX B. 

CfHBONOLOGY. 

1910. Auffust. The matter was mooted at the ChattanooRa meeting 

of the American Bar Aaeociation. 
1010. December 6. President Taft, in an official message to Confess, 
said: 

" One ^reat oying need in the United States is cheapening the 
cost of htigation by simplifying judicial procedure and elxpediting 
hnal judgment. Under present conditions the poor man is at woeful 
disadvantage in a legal contest with a corporation or a rich opponent. 
The necessity for the reform exists both in United States courts 
and in all state courts. In order to bring it about, however, it 
naturally falls to the general government by its example to furnish 
a model to all states 

" Under the law the Supreme Court of the United States has the 
power and is given the duty to frame the equity rules of procedure 
which are to obtain in the federal courts of first instance. In view 
of the heavy burden of pressing litigation which that court has had 
to carry, with one or two, of its members incapacitated through ill 
health, it has not been able to take up problems of improving the 
equity procedure which has practically remained the same since the 
oi]ganization of the court in 1789. It is reasonable to expect that 
with all the vacancies upon the court filled, it will take up the 
question of cheapenin^^ and simplifying the procedure in equity 
in the courts of the Umted States. The equity ^business is much the 
more expensive. / am strongly convinced that the best method 
of improinng Judicial procedure at law is to empower the Supreme 
Court to do it through the medium of the rules of the court, as m 
equity. This is the way in which it has been done in England, and 
thoroughly done. The simplicity and expedition of procedure in 
the English courts today make a model for the reform of other 
systems 

"I cannot conceive any higher duty that the Supreme Court 
could perform than in leading the way to a simplification of pro- 
cedure in the United States courts." 

1911. July 12. President Wilson's address before the Kentucky Bar 

Association: 
** There are two present and immediate tests of the serviceability 
of the legal profession to the nation, which I think will at once be 
recognized as tests which it is fair to apply. In the first place, there 
is the critical matter of reform of legal procedure— 4he almost 
invariable theme, if I am not mistaken, of all speakers upon this 
question from the President of the United States down. America 
taqs far behind other counlries m the essential matter of putfjima the 
whole emphasis in our courts upon the wbstance of right and 
ptstice. If the bar associations of this country were to devote 
themselves, with the ^at knowledge and ability at their com- 
mand, to the utter aunplification of judicial procedure, to the 
abolition of techincal difficulties and pitfalls, to the removal of 
every unnecessary form, to the absolute subordination of method 
to the object sought, th^ would do a great patriotic service, which, 
if ti)^ win not address themselves to it, must be undertaken by 
lajrmen and novices. The actual miscarriages of justice, because at 
nothing more than a mere slip in a phrase or a mere error in an 
immaterial form, are nothing less than ahocking. Their number is 
incalculable, but much more incalculable than their number is 
the damage they do to the reputation of the profession and to the 



UNIFOBM JUDICIAL PBOCBDUBE. 383 

majesty and integrity of the law. Any one bar oisociatian which 
would show the way to radical reform in these matters wotUd insure 
a universal reconsideration of the matter from one end of the 
country to the other and would by that means redeem the reputation 
of a great profession and set American society forward a whole 
generation in the struggle for an equitable adjustment of its 
difficulties." 
1011. August 17. Resolution offered in American Bar Association at 

Boston. (A. B. A. Rep., p. 50.) 
1912. August 27. Resolution unanimously adopted and committee 

created at Milwaukee. (A. B. A. Rep., pp. 35, 434.) 
1912. December 2. American Bar Association's Procedural Bill intro- 
duced in the House of Representatives by Chairman Henry D. 
Cliiyton. 

1912. . Bill also introduced in Senate by Chairman C. A.. 

Culberson, 

1913. September 2. Work of committee endorsed at Montreal and 

Conference of Judges organized. (A. B. A. Rep., pp. 34, 541.) 

1913. Sjrmposium on Procedure conducted by the 'American 

Bar Association at its Montreal meeting. 

1914. February 27. Messrs. Wm. Howard Taft, Elihu Root. Alton B. 

Parker, James D. Andrews and Thomas W. Shelton appeared 
before the Committee on the Judiciary of the House of 
Representatives and presented evidence and made arguments 
in favor of the Bill. 

1914. March 27. Unanimous report in favor of the bill made by the 
Committee on the Judiciary of the House of Representatives 
giving reasons and citing authorities. Copies can be had from 
your Congressman, 

1914. October 20. Work of committee again unanimously endorsed 
(A. B. A. Rep., pp. 45 and 571), President Taft's annual address 
before the Convention endorsed the campaign, and approved its 
object and purpose. (A. B. A. Rep., p. 381.) 

1914. December 1. Hon. William Howard Taft became a member of 

the Committee on Uniform Judicisil Procedure. 

1915. Januarv 9. President Wilson spoke at Indianapolis and said: 

** I do know that the United States, in its judicial procedure, is 
many decades behind every other civilized government in the 
world; and I say that it is an immediate and imperative call upon 
us to rectify that, because the speediness of justice, the inexpensive- 
ness of justice, tJie ready access of justice, is the greater part of 
justice itself. 

** If you have to be rich to get justice, because of the cost of the 

very process itself, then there is no justice at all. So I say there 

is another direction in which we ought to be very quick to see the 

signs of the times and to help those who need to be helped." 

1915. August 17. Report of committee again unanimously endorsed 

and a special resolution adopted instructing the committee to 

appeal to the President and Congress. This appeal was made. 

(A. B. A. Rep., pp. 32, 40, 502.) 

1915. November 10. There was a hearing before a sub-committee of 

the Committee on the Judiciary of the Senate. 

1916. . Entire program endorsed by the Judicial Section. (A. 

B. A. Rep., p. 752.) 

1916. November. President Wilson, in his New York address, said: 
" The procedure of our courts is antiquated and a hindrance, not 
an aid, m the just administration of the law. We must simplify 
and reform it as other enlightened nations have done, and make 
courts of justice out of courts of law." 
13 



384 BEPOBT OF COMMITTBS ON 



1917. Januaiy 2. There was a favorable report on the bill by the 

Senate Judiciary Committee. The following Senators voted 
against it and ngned a minority report, vii.: T. J. Walrik, C. A. 
Culberson, W. E. Chilton, Duncan U. Fletcher, James A. Reed, 
Henry P. Asfaurst, Jno. K. Shields, Hoke Smith, AJbeet B. 
Cummins. (Memo.) Senator Chilton is not in the jpresent 
Senate and Senator Fletcher will vote for the bill. Senator 
Culberson wrote that he would favor his own bill which is 
almost identical with the present one. (See 1917 Report.) 

1917. September 5. Again endorsed by American Bar Aasodation 

(A. B. A. Rep., p. 87). 

1918. September 4. Again endorsed by American Bar Association. 

(A. B. A. Rep.) 

1918. Advocated by every law magazine in the United States. 

1919. Advocated bv AttomQr-General Gregory in a letter to Senator 

Overman, the patron of the bill introduced in 1918. Advocated 
by Attorney-General Palmer in a letter to the Chairman of 
your committee. 
1919. Mf^ 26. Bill introduced by Senator Frank B. Kellogg of Minne- 
sota, member of the Judiciary (Committee of the Senate and a 
former President of the American Bar Association. 
1919. September 4. Again endorsed by American Bar Association. 

(A. B. A. Rep.) 
1921. Again endorsed by the American Bar Association. 
The program has also been ^dorsed by 
The National Association of Credit Men, 
The Chamber of Commerce of the United States, 
The Southern Commercial Congress, 
The Commercial Law League of America, 
The National Civic Federation, 
Forty-six State Bar Associations, 
The Deans of the leading law schools of the country, 
The law joiu'nals and periodicals. 

The Judicial Section of the American Bar Association, and 
Henry Watterson in the Courier-^ ournal and other law 
editors. 



APPENDIX C. 

Copy of Preamble and Besolutions Passed at the Twenty- 
FiBST Annual Meeting of the Pennsylvania Bab 
Association. 

Whereas, The American Bar Association is making an earnest and 
organized effort to modernize and make uniform the procedure of the 
courts, and 

Whereas, There is pending in the 63d Congress a bill known as H. R. 
No. 133, intended to vest in the Supreme Court of the United States the 
power to formulate and put into enect a complete Qystem of rules for the 
detail regulation of the federal district courts, and 

Whereas, Such a system will prove a model that may be followed by 
the several states and thus bring about uniformity; and 

Whereas, The Bar Association of the State of Peim^ylvania is in entire 
sympathy with the American Bar Association's program, and it is desired 
to give expression to the same; 



UNIFOBK JODIOIAL PROOBDUBS. 885 

Be it r€9olv0d, That the Bar Anodation of the State of Pennnrlvaiiia 
formally gives ezprefluon to its entire ^nnpathy with and approval of the 
Ameriean Bar Aaaociation^B program^and does respectfully and earnestly 
request Congress to enact into law House Bill 133 at the eamliest pos- 
sible moment; and 

Be U re»o/tHNi. That a special committee, to be composed of one mem- 
ber from each Congressional district of this state, to be named by the 
President, is hereby created for the purpose of presenting these resohi- 
tions to the Congressmen and Senators of this state uid to the President 
of the United States^ and otherwise to cooperate with the American Bar 
Association's Committee on Uniform Judicial Procedure in its campaign. 

Mbmo.— -The form of H. R. 133 is identical with S. 2870 introduced by 
Senator Kellogg and H. R. 2377 introduced by Chairman Volstead and 
is in the same torm as first introduced except the explanatoiy lines appear- 
ing in italics. 



APPENDIX D. 

Copt of Preamble and Resolutions Passed at the 1920 
Annual Mebtino of the Illinois and the Virginia 
State Bar Associations. 

Whkias, In the year 1911, in response to an ever increasing public 
demand, the American Bar Association started and has since niade an 
earnest, persistent and organised effort to brin^ about a nbore certain, 
steadier, less expensive and less technical administration of justice in 
America and to that end modernise and make imiform the procedure of 
the Courts; and 

Whibbas, For over eight years there has been pendinjs in Congress 
substantially the same bills known in the present Session as S^te 
No. 1214 and in the House as H. R. No. 133 intended to vest in the 
Supreme Court of the United States the power to formulate and put into 
effect a complete mtem of rules for the detail regulation of the federal 
district courts; and 

Whbbias, Such a flvstem will prove a model that- may be followed by 
the several states and thus bring about uniformity; and 

Whirbas, Todav there exists throujshout the country an earnest desire 
of Bench, Bar and People for immediate action, as evidenced in part by 
resolutions repeatedly passed; and 

Whrbeas, The Bar Association of the State of Illinois is in entire 
sympathy with said movement and with the American Bar Association's 
program, and it ig desired to give expression to the same; and 

Whboas. There is pending in the Judiciary Committee of the United 
States a bill known as No. 8. 1214 and the identical bill, although un* 
animously recommended by the Judiciary Committee of the House, has 
been held in the Judiciary Committee of the Senate for more than eight 
years; 

Therefore, be it reeolved, That the Bar Association of the State of 
' Illinois formally gives expression to its entire sympathy with and approval 
of the program of the American Bar Association; and 

Be it further reeolved, That the Committee on the Judiciary of the 
United States Senate be and it is respectfully but eamestb^ requested to 
make an immediate report in order that a vote may be had in the 
Senate at this seanon; and: The Illinois State Bar Araociation does 
hereby respectfully and earnestly request Congress to enact into law 
Senate Bill No. 1214 at the earliest possible moment; and 



886 RBPOKT OF COMMITTBE ON 

Be it further resolved, That a Special Committee, to be oompo0ed of 
one member from each Congreesional district of this state, to be named 
by the President, is hereby created for the purpose of presenting these 
resolutions to the Congressmen and Senators of this state and to the 
President of the United States, and otherwise to cooperate with the 
American Bar Association's Committee on Uniform Judicial Procedure in 
its campaign. 

(Mbmo. — All State Bar Associations are earnestly requested to adopt 
the above form of resolution.) 



APPENDIX E. 

Instances of Failube to Conform to State P^ctice. 

It will be interesting to observe a few instances where conformity was 
impractical and the Supreme Court so held. A state statutory right to 
a change of venue was denied in Kennon vs. Gilmer (1889, 131 U. 8., 24; 
33 L. ed., 110). That the personal conduct and administration of a 
federal jud^e was not afTected by a state statute regulating the manner 
in which a jury should be charged was held in Nudd vs. Burrows (1875, 
91 U. S., 441 ; 23 L. ed., 286). That the provisions for imiformity do not 
extend to modes of procedure established by judicial interpretation of 
common law but only to statutes, was held in Wall. vs. 0. Sc O. R. R. Co. 
(C. C. A., 1899; 95 Fed., 398). That actions at law, regardless of state 
statutes, must be brought in the name of the owner of the legal title, was 
held in Norfolk Co. vs. Sullivan (111 Fed., 181). That statutory sub* 
stituted service is not applicable to the federal courts. (Bracken vs. 
Union P. R. R. (C. C. A., 1893), 56 Fed., 447.) That a federal rule of 
practice prevailed regardless of a subsequent state statute altering the 
time in which a writ is returnable. (Shepherd vs. Adams (1898), supra.) 
That amendments of process and pleadings allowed by state statutes wiU 
not be followed when inconsistent with federal statutes or amendments. 
(Henderson vs. Louisville R. R. Co. (1887), 123 U. 8., 64.) That an 
equitable counter claim cannot be set up in a federal court. (Churdi vs. 
Speigleburg (1887), 31 Fed., 601.) That the granting or refusing of a 
continuance is a matter within the discretion of the court notwithstanding 
a contrary state statute. (Texas R. (Do. vs. Nelson (C. C. A., 1892), 
50 Fed., 814.) That the selections of jurors does not follow the mode 
prescribed by state statutes. (Brewer vs. Jacobs (1884), 22 Fed., 217*) 
That a state statute permitting a party to be examined by his adversary 
in advance of the trial will not be foUowed. (Union P. Co. vs. Botflford 
(1891), 141 U. S., 257; 35 L. ed., 735.) That the competency of witnessea 
depends upon Section 858, Revised Statutes, and not upon state statutes. 
To effect this it was held that Section 921, Revised Statutes, prevailed 
over Section 914, Revised Statutes; that the production of books and 
papers was regulated by Section 721, Revised Statutes, as amended and 
not by the state statutes; that the federal courts might instruct a veidiet 
or order a compulsory nonsuit or for the defendant or plaintiff, regardless 
of state statute. (Vicksburg Co. vs. Putnam (1886), 118 U. 8., 553; 
30 L. ed., 257.) That instructions need not be in writing. (Lincoln vs. 
Power Ck). (1894)^ 151 U. S., 442; 38 L. ed., 224.) That a state statute 
requiring instruction or a special verdict need not be observed. (U. 8. 
Mutual Co. vs. Barry (1889), 131 U. 8., 119; 33 Fed. 69.) The granting 
and refusing of new trials is not controlled by state staUites. (Newcomb 
vs. Wood (1878), 97 U. 8. 583; 24 L. ed.. 1085.) That the question of ooflt 
is not governed by state statutes but by Section 823, Revised Statutes, 
which was held to supersede Section 914, Revised Statutes. That every- 



UNIFORM JUPICIiX PnOCXDURB. 387 

thing after a judgment looking to its review in an appellate eourt.is. 
regulated solely bv the acts of Congress. (Hudson vs. Parker (1875). 
156 U. 8., 281 ; 39 L. ed., 424.) That regulations concerning preserving ot 
exceptions are not governed by state statutes. (Chataugay (Do. vs. 
Petitioner (1882), U. S., 553; 32 L. ed., 5ll.) That the means of -enforc- 
ing a judgment are not within state statutes but Sections 915 and 916, 
Revised Statutes. (U. 8. vs. Train (1882), 12 Fed., 853.) That a stay of 
execution is not governed by state statutes; that Section 916 supersedes 
Section 914. (L